Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. I was listening to the Senator. I see my colleagues who have not spoken. I will only take a minute. I was listening to the Senator talk about opportunities for young children to go to college. I have here a chart which indicates the average requested increase during the Clinton years was $167. Last year, the Bush request was $100 in Pell grants. The Congress raised that to $250. This year it is zero. In the matter before us, this amendment raises it by $500. I want the Senator to know, as she talks about higher education, the administration request was zero. Last year it was $100, and we raised it to $250. If this amendment is successful, it will be $500. There will be 200,000 new Pell grant recipients, 4.5 million college students with Pell grants that on average are $300 higher, and it hikes the maximum Pell grant to these needy students by $500. As she was talking about the importance of higher education, after being the leader in this body on the issue of smaller class size and qualified teachers over the years, and I believe the only former member of a school board, as well as a teacher, it is wise that our colleagues listen to the Senator from the State of Washington.

Mr. KENNEDY. That is the figure that came out of the conference. That is the figure the President agreed to and signed to. That, actually, is $2 billion less than was voted on by 79 Members of the Senate in the Dodd-Collins amendment, which would have added $18 billion. This is $16 billion. That's what came out of the conference.

Mr. KENNEDY. Will the Senator yield on that point?

Mr. KENNEDY. I yield 10 minutes to the Senator from Rhode Island.

Mr. KENNEDY. Will the Senator yield on that point? I yield myself 2 minutes on this. Is the Senator saying as we are considering the omnibus bill and the money which is going to be expended on that--of which $10 billion was generally agreed to last year by Republicans and Democrats--that we would take $6 billion of that $10 billion--and there are those who are opposing it--that we are still going to say we can afford the $670 billion, and a great percentage of that will go to the top 1 percent of the wealthiest individuals, and that is a higher priority than meeting what President Bush and a bipartisan group pointed out were the needs of children in many of the poorest areas of this country?

Mr. KENNEDY. Mr. President, I yield myself one more minute. Is the Senator, therefore, suggesting, as we look down the line in terms of the national budget--and what the budget is going to be--that we have the choice of having the $6 billion to take care of 2 million more children, who we promised we would take care of in title I, and perhaps reducing the President's tax cut by $10 billion this year? That could be done, as the Senator said. We could say: Look, we, in the Senate, say, OK, we think it is more important to provide funding for the children and to reduce the President's tax cut by the $6 billion that would be affected this year. We have that choice, do we not?

Mr. KENNEDY. That means they will have the basic kinds of educational skills over a 12-year period. That was the national goal. That is what had the support of the President, Republicans, and Democrats alike. Can the Senator possibly explain how we are ever going to have those 6 million begin to even reach proficiency when, year after year, they are left out of any kind of coverage, any help--a qualified teacher, smaller classroom with supplementary services, which is guaranteed in the legislation?

Mr. KENNEDY. Mr. President, I have yet to see the Senator's amendment.

Mr. KENNEDY. Let me have a chance to review it.

Mr. KENNEDY. I thank the Senator. I want to have a chance to review the amendment. Mr. President, we have had a very good discussion with seven or eight of our colleagues who have spoken. Senator Reed wants to speak. Senator Clinton, Senator Corzine, and Senator Stabenow also want to make comments. This has been an important debate. I agree with the Senator from New Hampshire that the issues of ensuring protection at home and education are the Nation's top two priorities. We do not differ, evidently, on those issues. We have important differences on how to assist in education. I will mention a couple quick responses to the Senator. My first response is about the unspent figures, about $4.5 billion. Most agencies, not all, but most agencies have unspent funding. The reason the funds are not spent is because we are in the middle of the school year. Do we understand that the funds that will be in this omnibus bill will be for the next year, for July? That is when they will be committed. We have unspent money because we are only halfway through the school year. The districts have already obligated these funds. Anyone who does not believe that there are severe fiscal challenges in local school districts has not talked with their local school board, principals, students, or the teachers in communities across this country. That is number one. Second, I welcome the fact the Senator from New Hampshire wants to effectively take credit for the increases we were able to agree on in the No Child Left Behind legislation. As he remembers very well, when the bill was first introduced, it was $500 million. It ended up at $1.5 billion because we insisted on it. I am glad we worked that out in a bipartisan way. I am glad he is prepared to say that is part of the Bush commitment at this time. We ought to understand exactly what the history has been. When he talks about the increase over the last 2 years, he is talking about the increase which the Democrats were able to get, with the agreement of the Republicans, in the last year of the Clinton proposal. The Senator makes a fair point in terms of the funding of Title I under the previous administration. I would have liked to have seen this funding higher, but it was not higher. We have to recognize all that was being done in the area of education during that period of time, which was extremely important, to respond to many of the challenges in the areas of title I. Under the previous administration, what did they have? They had no school left behind. To do what? To provide funds at the local school level. To do what? To establish standards, which were eventually adopted in the No Child Left Behind legislation. There was basic school reform in the good legislation of Goals 2000 that was passed. We had the school-to-work program, that has not been referenced, but has been very important in terms of opening opportunities for students moving out of high schools. There was expansion of the TRIO program, which also is a program which targets the disadvantaged. We also had expansion and improvement of Head Start. We had AmeriCorps, which was a new educational opportunity. We had the GEAR UP program, which built upon the concept that rather than just looking for individuals whose education ought to be furthered by special individual help and assistance at the university, to look instead at the idea of helping a whole class, moving a whole class forward. A very interesting and new concept, particularly to tie universities to school districts with disadvantaged children. A great deal was done in that time. There was also the HOPE scholarship, the lifelong learning scholarship. There was a lot of educational activity during that period of time. I think it is fair to say that we did not see the expansion in Title I that we have seen in recent times; but in the area of prioritizing education, no administration can compete with what was achieved in the Clinton administration, quite frankly. Many of us are proud to be a part of it. Nonetheless, when we take all of that apart, let us get to what the facts are. I have in my hand a report by the Center on Education Policy. This is not a Democratic report. This is not a Republican report. This is a board of some of the most distinguished educators across the country, and this is what it says, effectively: We have found that the fiscal crisis in most States, coupled with the prospect of limited Federal aid, threatens the successful implementation of this ambitious law, the No Child Left Behind Act. There it is. At this time, we have more than 6 million children who qualify for assistance under Title I who are not assisted without this kind of amendment. With this amendment, we would include 2 million more of those children. Without this amendment, maybe 354,000 of those children are helped. So are we going to try to reach out to children who are being challenged educationally in every community, as the Senator, my friend from New Hampshire, Mr. Gregg, has pointed out, which is a major kind of reform in terms of advancing teacher training, involving the parents, developing good curriculum and working with afterschool programs, or are we going to cast them adrift? We have the framework. We will lose the opportunity. Those are the facts concerning the number of children who still remain to be covered. That is the essential part of where we are in the funding. Now I will say a word about the Gregg amendment, and then I will yield. This puts $5 billion in a block grant which will go to the States. As far as we are reading it now, it is not directed toward the title I program. If I am wrong on that, I hope to be corrected because we just received this amendment. What our amendment does is, it deals with the title I program. It also deals with Pell grants, but it is primarily for title I, the neediest children. The primary purpose of President Bush's program was title I, but the Gregg amendment is not a title I program, it is basically a block grant to the States. It does not focus on or require that it be spent on title I. It provides for a 1.3-percent across-the-board cut in addition to the 1.6-percent cut, which is almost double the amounts that previously would have been cut. If this program is supported, this will mean 248,000 women, infants, and children will be turned away from the WIC program. It eliminates 8,600 children from the Head Start program. It means 250,000 fewer veterans being treated, 1.6 million fewer visits by veterans to outpatient clinics. Eighty-eight thousand fewer families would receive housing assistance. And the list goes on. This omnibus bill is $10 billion less than what was basically agreed to in the previous Congress. My amendment says $6 billion of that will be used now. It will still be $4 billion less than what was agreed to last year, even with this amendment. It is effectively replicating what 79 Members of the Senate voted for. Some say, well, that does not really make much difference because it was an authorization. It evidently made a difference to the Senators from Maine and Connecticut who offered the amendment and to the 79 Members who voted for it and went back to their constituents and said they voted for it, said: This is what we believe in. I take their votes seriously. That was for $18 billion. This would be a total of $16 billion. I hope the Senator's amendment will not be agreed to.

Mr. KENNEDY. Mr. President, I send an amendment to the desk.

Mr. KENNEDY. Mr. President, I commend my colleague from West Virginia for his leadership in providing the resources needed to enhance our national security. One of the most important aspects of the Byrd amendment is the additional resources it will provide to protect America from the threat of bioterrorism. The anthrax attack of a year ago has made all Americans aware of the grave threat posed by biological weapons. We know, for example, that terrorists bent on savage destruction may well have access to the smallpox virus, one of the deadliest plagues ever to threaten humanity. Faced with this obvious danger, it is essential for Congress to provide adequate funds to our hospitals, medical professionals, and communities. They need to act now to prepare for this threat. In a few days, thousands of health and emergency workers will be asked to roll up their sleeves and be vaccinated against smallpox. There is a cleave need to inoculate health care workers, so that they can quickly vaccinate millions of Americans in the event of an outbreak, as a CDC advisory committee has recommended to the White House. We need to protect the safety of those who receive the vaccine. We need to provide financial assistance to the communities that will bear the expense of giving the vaccine to thousands of workers. We need to provide compensation to those who are injured by the vaccine and guarantee their medical care. Smallpox vaccination must be coupled with effective education and safety programs to minimize the risks to those receiving the vaccine and to their communities. The health of those receiving the vaccine must be closely monitored. Recipients of the vaccine must be educated about its risks and potential benefits. All of these essential elements cost money. The Nation's health departments and hospitals should not have to implement the smallpox plan by taking from other vital health priorities or risking their financial viability. Just this month we've seen new figures that the current death toll from the flu has surpassed that from HIV/AIDS. Senior citizens around the Nation may have to go without flu vaccinations if local health departments are spending their immunization budgets on smallpox. Women may not receive needed screenings for breast cancer because scarce funds are being siphoned away. Certainly, we must enhance our homeland's security, but we must not purchase security at unacceptable price of missed immunizations or reduced care for those most vulnerable. The cost of implementing the smallpox plan should not be reducing efforts to enhance our preparedness for other forms of biological attack. Public health organizations report that many communities are thinking of following the example of Seattle and Arlington, VA, where almost all other bioterrorism preparedness activities have been suspended in order to free up funds for smallpox vaccinations. The Massachusetts State Laboratory Institute has had to divert $110,000 from preparedness planning, $165,000 from epidemiology, $125,000 from expanding disease tracking networks, and $261,000 from health education and information, all to fund the new smallpox plan. These diversions of funding may be just the tip of the iceberg. Although the direct costs of the smallpox plan are large, the indirect costs may be even larger. Even with the best safety measures, some individuals will be injured by the vaccine. Military personnel receiving smallpox shots can rest assured that anyone injured by the vaccine will get the best of medical care. We should do no less for the civilian heroes who put their lives on the line to safeguard our security. It would be shameful for the Federal Government to encourage any American to receive the vaccine, and then deny proper care for the consequences. Yet this is just what the current plan would allow. Instead of assuring medical care to vaccine recipients, the plan relies on the uncertain coverage of the private insurance market or workers' compensation programs to provide care. If a health care worker who volunteers for vaccination has no coverage or has inadequate coverage, they are out of luck, and that is wrong. Nor does the plan provide an assured system of compensation for those who are injured by the vaccine or for health workers who must take days away from work to protect their patients from the risk of accidental transmission of the live virus in the vaccine. Instead, the plan forces claimants to sue the U.S. Government in Federal courts, where they face the arduous task of proving that their injuries were due to negligence. The Byrd amendment takes the steps that are necessary to deal with these problems. The distinguished Senator from West Virginia provides almost $1 billion to help communities around the Nation implement the administration's smallpox plan. I urge my colleagues to approve the Byrd amendment and devote adequate resources to protecting not only safety of the Nation, but the health and safety of those who defend it.

Mr. KENNEDY. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. KENNEDY. That is my understanding.

Mr. KENNEDY. Mr. President, as all of us in this Chamber understand, and perhaps those American citizens who are watching this debate do not understand, this matter that we are considering is also the instrument by which we are going to fund the support for educational programs. The amendment which we offer is directed primarily at the title I parts of the educational programs. It also has an important addition in terms of the Pell provisions which make such a difference to children who have considerable ability but lack financial support. I wish to review very briefly where we have been in terms of the funding of education. The Federal role in the area of education has been limited but very important. It goes back to the early mid-1960s when the Congress and the President at that time made a decision that it was in the national interest to try to provide some help and assistance to the neediest and poorest children of this country, recognizing that education was a local and State responsibility. And they continue to remain the responsibilities for the localities and the States. But, nonetheless, the issue of very poor children in our society was a matter of national interest and national concern, and so we tried to fashion an educational program to provide assistance so those children would not be left out and left behind. That was, basically, the reason for the development of the title I program in the mid-1960s. In the 1960s, as that went through the Senate and eventually went to the House of Representatives, the formula for the implementation of that program spread those resources far and wide. Rather than being really targeted on the neediest children, it was spread among a broader area. The actual resources that went to aid the neediest children was very little, sometimes $100 or $200, but essentially small, generally speaking. In the review of the effectiveness of title I, we have seen over a long period of time that hasn't produced the kinds of results that many of us had hoped would be achieved. We have seen a number of different steps that were taken during the Clinton administration where we had a variety of different pieces of legislation, for instance, the Goals 2000, which provides help and assistance to localities through the States. That was the legislation that helped develop the concept of standards which has been so important and embraced in the No Child Left Behind bill, with the idea that States would develop the kinds of standards they thought necessary for each grade in that particular State. What No Child Left Behind tried to do was say these are the standards established by the States, this is the curriculum for teaching those standards, and these are the tests to try to make sure those children are learning what was intended they should learn, and then these are the supplementary services to try to help those children who are falling further behind. That was the concept in the No Child Left Behind bill. Nonetheless, the good work of the Goals 2000 made an important downpayment. There was also the efforts of the School-to-Work Program to assist some of the children who might have been dropping out. We have close to 500,000 children a year who drop out of school, who think they can not make it academically. This program provided help and assistance when they went from school to work. We have had strong success in a number of different areas, and continue to, even though the legislation has expired. We had additional educational funds in the AmeriCorps and in the direct loan program to try to provide help and assistance to children in higher education--a whole range of HOPE scholarships, and lifelong learning scholarships for educational efforts during that period of time. Nonetheless, if we look back over the focus and attention of where this institution has been in funding educational programs, it is not a strong record. I wish to review very quickly as we put into perspective the needs of this amendment, which adds some $6 billion to the overall omnibus bill, meaning we would have $16 billion in the title I program and which effectively is what our conference committee agreed to when we reported out and accepted the No Child Left Behind bill that the President signed. In my opening comments, looking at the figures, I mention to the body the amendment that was offered by my friends and colleagues from Connecticut and Maine. During authorization of the No Child Left Behind bill, we took the time to consider the Dodd-Collins amendment which would have provided $18 billion. That was agreed to by 79 Members of this body. It had 29 Republican votes supporting that increase of $18 billion as the total amount in title I. This is $16 billion. We are going to find out this afternoon whether there is that kind of commitment so clear from the debate and discussion and vote that we had on May 3 which provided 79 votes in favor of that, with virtually no Democrats voting in opposition to it. Now we have a chance for real money. This is real money. That is the authorization. Now we have the chance to implement what we voted for some time ago in terms of the No Child Left Behind bill. As we look over the last years in terms of where we are and what the record is in this body on various educational funding, the reason this is so important is that we find there has been a strong element in this body that believes there is no role whatsoever for the Federal Government in the field of education. I understand that. I respect that. I differ with it. I think most parents want to see their children learn. They want to see smaller class sizes as we have seen in recognizing the distinguished Presiding Officer's State of Tennessee which has moved to get smaller class sizes. They want well-qualified teachers. They want afterschool programs to help and assist the students who are falling further behind. They want that certainly. They need that kind of a program. They want some help and assistance for limited-English-speaking students to help and assist those individuals. They want to make sure when these children, who may come from limited resources, also have an opportunity to continue their education in terms of help and assistance with either Pell grants and loan programs. They work hard during the course of the summer and they may want to take out some loans to continue their education. I think that is what the American people expect. There should be no mistake about it. In this body, we have had a long, hard battle in getting adequate funding in education. In considering the No Child Left Behind bill, we have a great sense of expectation for the children in this country. No Child Left Behind said to the young people in this country: We will do our best to give you a well-qualified teacher, smaller classrooms, and help and assistance when you need it. And we are going to be committed to trying to assist you to continue your education. We put strong responsibility on the children. We put strong responsibility on the schools that if they are failing, they have to reorganize or restructure themselves or there will be action by the States. We put responsibility on the parents with the report card to inform parents how their children are performing. We have even involved the parents in a variety of educational alternatives, all of which have been recommendations and experiences which we have found to have benefited the children left behind. We have to ask ourselves today, who is failing in meeting their responsibilities? It is right here in the Congress of the United States that we are failing the children of America. This omnibus bill is failing the children of America. With this amendment we have an opportunity to provide the kind of assistance to the children all across this country that the No Child Left Behind bill was intended to provide. This has been a long and continuing struggle. Many of us can remember, going back to 1995, when we had already appropriated funding in the area of education, and there was actually a rescission offered by the new Republican leadership for moneys going to education of $1.7 billion. And we were able to get $1.1 billion restored with the Democratic support. The next year, there was a $3.9 billion reduction in the cut in the Republican House of Representatives. We, the Democrats, were able to restore $3.5 billion. It was repeated again in 1997. It was repeated again in 1998. In 1999, the Republicans authorized and appropriated $2 billion below what the President requested. And then, after tough negotiations, President Clinton was able to get the $3.6 billion. And the list goes on. I want to bring to the attention of the Senate, and our friends who are watching this debate, these figures. This is what was actually offered by the President of the United States. In the year 2000, he asked for a $2.5 billion increase, and we stood for, with the reform, $7.7 billion. We are going to hear a lot about increases over 2002. Let's remember theirs was $2.5 billion and this was $7.7 billion. Then, this year, they asked for $1.4 billion, which is 2.8 percent above what was asked for in the previous years. I want to say, right at the outset of this debate, money isn't everything, but it is a pretty clear indication of a nation's priorities. That is what this debate is about: a nation's priorities. That is what the omnibus bill is about: reflecting the Nation's priorities in the amount of moneys that are going to be appropriated by the Congress and Senate of the United States. That is what this debate is all about. When we talk about these figures, we are not just talking about dollars--hundreds of millions or billions of dollars--we are talking about making sure qualified teachers get in those classrooms. That is what money represents. It is not just spending; it is providing qualified teachers. It means smaller classrooms and afterschool programs and assistance to students with limited English. We do not have the construction money in here that we had in the previous administration. So we effectively made a contract with the American people. We said: Look, we will pass No Child Left Behind. We had made a contract with the parents, with the students, with the States, with the local communities, and we were signatories. The President was a signatory. Every Member of this Congress, at that time, was a signatory with their vote. There were a handful of Members who voted in opposition, but those who voted in favor were signatories to that particular proposal. So we are looking, effectively, with the report that we have before us, at an increase of $1.7 billion instead of the amount that was requested, $1.4 billion. We will hear a good deal on the floor of the Senate about what kind of increase this is, what kind of increase it isn't, that it is a large increase or that it is really just a small increase, as I have described it. I have here the Department of Education Fiscal 2003 Budget Summary. It says on page 2: The President is requesting $50 billion in discretionary appropriations for the Department of Education, an increase of $1.4 billion or 2.8 percent over the 2002-enacted level. So 2.8 percent over the 2002 level. That does not even take care of inflation. That is effectively a cut. Let me show you what has happened over the previous years in education. Let me just show you what has happened over the last several years in the areas of education funding. This chart includes total education. Going back to 1997, a 16-percent increase; 1998, 12 percent; 1999, 12 percent; 2000, 6 percent; 2002, 19 percent; 2002, 16 percent. Now, the administration's budget is at 2.8 percent--the lowest we have had over this whole period of time. This is when we have the most important education legislation before the children of America. That is wrong. That is wrong. And that is what we are attempting to address. This is, as I mentioned, under the Department of Education, 2.8 percent. I mention this because we will hear others talk about: Oh, we have the largest increase we have seen in recent times. Listen to this. I have here a page, which I will print in the Record, entitled ``Labor, Health and Human Services, Education and Related Agencies Appropriations.'' It says: ``Republican House Appropriations Staff Document Accompanying [their bill] H.R. 246.]'' If you look down at ``Total: Elementary and Secondary Education Act programs,'' there is a cut of $89.655 million. So a $90 million cut right here in the effect of their program, a $90 million cut, because their funding does not even meet the education inflationary needs. Mr. President, I ask unanimous consent that the item to which I just referred be printed in the Record.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I would like to bring a recent article in the Washington Post to the attention of our colleagues. Michael Kaiser, who is the President of the Kennedy Center, has written a thoughtful and articulate article on the serious challenges facing the performing arts in America. Mr. Kaiser is an impressive leader for the Kennedy Center. In the 2 years he has been its President, the Center has staged a broad range of programs in dance, music and drama and has significantly expanded its efforts to reach out through the arts to improve the lives of all Americans. I commend all that Mr. Kaiser is doing so effectively, and I ask unanimous consent that his recent article be printed in the Record.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I ask unanimous consent that Britt Jung, a legislative fellow in my office, be granted the privilege of the floor during debate on the omnibus bill.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, reports indicate that the Bush administration intends to submit a brief in the Supreme Court opposing the University of Michigan's use of affirmative action in its admissions policy. This still sends the absolute wrong message about the administration's commitment to civil rights and equal educational opportunity for all Americans. Today is Martin Luther King's birthday, and he would be the first to condemn the shameful hypocrisy of the administration on race. Affirmative action is critical to providing educational opportunities for qualified minority students. Much of the progress that we have made in this country in reducing the income and employment gaps between minorities and whites is the direct result of affirmative action programs that have provided minority students with access to colleges and universities. We know that the struggle for equality is not over. Even with affirmative action, there are significant racial disparities in higher education between minority students and white students. Currently, African-Americans enroll in higher education at 85 percent the rate of white students. Latinos enroll in higher education at only 80 percent the rate of white students. As a country, we need to work to close that gap, as the administration now proposes, not widen it. By providing educational opportunities to talented minority students, affirmative action programs help benefit all of our society. We all benefit when students are allowed to fulfill their true potential. We all benefit from lower poverty rates, and higher income and employment rates. Students benefit from the interaction and learning that takes place among students from different racial and ethnic backgrounds. Opponents of affirmative action rely on myths that are refuted by numerous studies and even by common sense. They argue that affirmative action is unfair to qualified white students. But as the Michigan admissions programs demonstrate, affirmative action programs do not involve special quotas or set-asides for minority students. A student's racial and ethnic background is one among many factors that are considered in determining admission. In addition to a student's grades, test scores and recommendations, universities consider such factors as whether student's parents are alumni, a student's socio-economic background, their geographic background and whether they have special artistic, athletic or other talents to contribute. Given the range of factors considered in college admissions, the true unfairness would come from saying race and ethnicity are the only factors that could not be considered. Opponents also argue that affirmative action helps unqualified students. The University of Michigan's affirmative action program admits only qualified students. The success of minorities graduating from selective schools as measured by their graduation rate, their performance in professional and graduate school, and their success in future careers and as community leaders is well documented in a recent study by William Bowen and Derek Bok in their book ``Shape of the River.'' Most of the African-American and Latino students accepted under affirmative action come from lower-income backgrounds than white students. They are more likely to have gone to segregated and poorly- funded schools, and much less likely to have parents who had attended college. Yet despite these disadvantages, their success was comparable to their white counterparts. The administration suggests that it supports the idea of racial and ethnic diversity, but that it doesn't believe that one should use what it calls ``racial preferences'' to achieve this. This, however, is a cop-out that evades the key question posed by the Michigan case: that is, whether racial and ethnic diversity is a compelling governmental interest. Not whether it is a merely good thing, but whether, given the central importance of integrated schools to our society, it is a constitutionally compelling interest. Moreover, any suggestion that all universities can enroll a diverse student simply by relying on race-neutral programs, such as percentage plans is simply wrong. As a recent report by the U.S. Civil Rights Commission makes clear, percentage plans have failed to markedly affect enrollment of minorities at flagship state universities. In addition, these programs do not even purport to reach graduate or professional schools or private colleges, all of which would be affected by the Supreme Court's ruling. In failing to support the University of Michigan's program, the Administration is undermining the central promise of the Fourteenth Amendment's equal protection clause. The equal protection clause was founded on the notion of providing equality of opportunity to all Americans, particularly those who had been disadvantaged by our country's history of discrimination. We have done tremendous work in this country to improve educational opportunities from elementary school through higher education, and to reduce racial inequities, but our work to fulfill the promise of the equal protection clause, and the core values that underlie our democracy is not done. I had hope that the administration would join those of us who seek to continue that struggle and I am tremendously disappointed in the decision they have made today. I yield the floor.

Mr. KENNEDY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. I ask unanimous consent to proceed for 10 minutes as in morning business.

Mr. KENNEDY

Mr. KENNEDY. Madam President, soon after the vicious attacks of September 11, it became clear that Congress needed to act on a bipartisan basis to win the war on terrorism and protect the country from future attack. Congress quickly approved strong bipartisan legislation authorizing the use of force against the terrorists and those who harbor them. It also enacted bipartisan legislation to provide aid to victims and their families, to improve airport security, to give law enforcement and intelligence officials enhanced powers to investigate and prevent terrorism, to improve border security, and to strengthen our defenses against bioterrorism. The September 11 attacks also demonstrated the need to consolidate overlapping functions and establish clear and efficient organizational structures within the Federal Government. I fully support these goals. Reorganization without reform, however, will not work. It is not enough to consolidate different agency functions, if the underlying problems relating to management, information sharing, and coordination are not also addressed. And we do the Nation a disservice if, in the course of reorganizing the Government, we betray the ideals that America stands for here at home and around the world. We know that our Nation faces a very serious threat of terrorism. To protect our national security in today's world, we need an immigration system that can carefully screen foreign nationals seeking to enter the United States and protect our Nation's borders. Our current Immigration and Naturalization Service is not up to these challenges. For years, INS has been unable to meet its dual responsibility to enforce our immigration laws and to provide services to immigrants, refugees, and aspiring citizens. The Lieberman homeland security bill included bipartisan immigration reforms that were carefully designed to correct these problems and bring our immigration system into the 21st century. It untangled the overlapping and often confusing structure of the INS and replaced it with two clear lines of command--one for enforcement and the other for services. It also included a strong chief executive officer to ensure accountability, a uniform immigration policy, and effective coordination between the service and the enforcement functions. On these key issues, the Republican bill moves in exactly the wrong direction. It transfers all immigration enforcement functions to the Border and Transportation Security Directorate. Immigration service functions are relegated to the Bureau of Citizenship and Immigration Services, which lacks its own Under Secretary. These agencies will have authority to issue conflicting policies and conflicting interpretations of law. The formulation of immigration policy--our only chance to achieve coordination between these dispersed functions--will be subject to the conflicting views of various officials spread out in the new Department. With its failure to provide centralized coordination and lack of accountability, the Republican bill is a blueprint for failure. The Republican bill also eliminates needed protections for children who arrive alone in the United States. Often, these children have fled from armed conflict and abuses of human rights. They are traumatized and desperately need care and protection. The Lieberman bill included safeguards, developed on a bipartisan basis, to ensure that unaccompanied alien children have the assistance of counsel and guardians in the course of their proceedings. Under this bill, immigration proceedings will remain the only legal proceedings in the United States in which children are not provided the assistance of a guardian or court-appointed special advocate. Finally, the Republican bill will seriously undermine the role of immigration judges. Every day, immigration courts make life-altering decisions. The interests at stake are significant, especially for persons facing persecution. We need an immigration court system that provides individuals with a fair hearing before an impartial and independent tribunal, and meaningful appellate review. The Republican bill undermines the role and independence of the courts and the integrity of the judicial process. It vests the Attorney General with all-encompassing authority, depriving immigration judges of their ability to exercise independent judgement. Even more disturbing, the bill gives the Attorney General the authority to change or even eliminate appellate review. This result is a recipe for mistakes and abuse. An independent judicial system is essential to our system of checks and balances. Immigrants who face the severest of consequences deserve their day in court. Today, many Americans are concerned about the preservation of basic liberties protected by the Constitution. Clearly, as we work together to bring terrorists to justice and enhance our security, we must also act to preserve and protect our Constitution. Unfortunately, the Republican bill undermines the civil rights and privacy safeguards that Senator Feingold and I worked to include in the Lieberman bill. In particular, I am disappointed that the civil rights officer in the new Department will not be subject to Senate confirmation, and that there will not be a designated official in the Inspector General's Office to investigate civil rights violations. These changes to the civil rights and privacy safeguards are particularly disturbing in light of the fact that the bill explicitly authorizes the new Department to engage in the controversial practice of data mining. This practice allows the Government to establish a massive data base containing public and private information, with files on every American. The bill provides no language ensuring that the Government acts in compliance with Federal privacy laws and the Constitution. On the issue of worker rights, we should remember that union members risked and lost their lives and saved countless others through their actions on September 11. We will never forget the fine example that firefighters, construction workers, and many Government workers set that day. Union workers have also shown great bravery and sacrificed mightily in the service of homeland security since September 11. The postal workers and the hospital worker killed as a result of bioterrorism were all union members. The brave flight attendant whom the President recognized in the State of the Union Address for preventing terrorism was a member of a union. The dedication and resolve of these union members truly represents the best of America. Over 43,000 of the Federal workers affected by the proposed Government reorganization are currently union members. On September 11, unionized Federal workers played critical roles at both the World Trade Center and the Pentagon as they worked round the clock to make our homeland secure. These are the workers who risk their lives each day to protect our Nation's borders. This bill completely undermines the collective bargaining rights of the unionized employees transferred to the new Department on whom our security depends. It gives the President unlimited and unchecked authority to eliminate those collective bargaining rights. He only needs to claim that continued union rights would interfere with homeland security. Federal workers will also have no opportunity to meaningfully participate in creating the personnel system for the new Department. Moreover, this bill does not include any Davis-Bacon protections, despite longstanding Federal policy that workers should be paid prevailing wages on Federal construction projects. This bill displays a contempt for the Federal workers who serve with dedication every day to keep our Nation Safe. Denying Federal workers fundamental rights will also undermine our Nation's homeland security at a time when we can ill afford it. Among the many lessons we have learned since September 11 about lapses in intelligence efforts connected with those events is that Federal workers need protection to be able to speak out when they believe our Nation's security is at risk. Without the protections afforded by a union, Federal workers will be far less likely to speak out and protect the public for fear of unjust retaliation. The Republican bill's fundamental flaws were compounded to by the last-minute addition of numerous special-interest provisions. These provisions include the creation of new procedural barriers for the issuance of emergency security rules deemed essential to protect travelers by the Transportation Security Agency; an earmark for a new homeland security research center program at Texas A&M; and an exemption from the open-meetings requirement of the Federal Advisory Committee Act. The bill gives broad liability protection to manufacturers of ``anti-terrorism technology'' for claims arising from acts of terrorism. This provision will reduce the incentive of industry to produce effective antiterrorism products and limit the ability of victims to recover if future terrorist acts occur. It also shields from liability pharmaceutical companies that produce vaccine additives such as Thimerosal--the subject of pending litigation initiated by parents of autistic children. This provision has nothing to do with bioterrorism preparedness or homeland security--and everything to do with rewarding a large contributor to the Republican Party. While I agree with my Republican colleagues that we need to reorganize the Government in responses to the challenges that we now face, I cannot support the deeply flawed bill now before the Senate. In too many aspects, it misses the opportunity for real reform and is likely to undermine, not strengthen, the security of our homeland.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I oppose the confirmation of Judge Shedd to the Court of Appeals for the Fourth Circuit. His nomination is also opposed by a large number of individuals, law professors, bar association and civil rights groups across the country, because he has not shown the commitment to the protection and vindication of Federal rights that is essential for this high position in the judiciary. Judge Shedd has an unacceptable record in cases involving race and gender discrimination. In race discrimination cases, for example, he consistently grants summary judgment against African-American civil rights plaintiffs, preventing even close cases from reaching a jury, and he often does so with little or analysis. In one case, he granted summary judgment for the defendant after the EEOC determined there was a reasonable cause to find that the plaintiff was denied promotion and the denial was based on race. In another case, the plaintiff was denied a pay increase despite the recommendation of his immediate supervisor, where the employer was found by the State to have been discriminating against African-Americans on pay increases. Judge Shedd has a similar record in gender discrimination cases. He granted summary judgment for an employer in a sexual harassment case in which the male supervisor's conduct was so inappropriate that Judge Shedd himself stated that the supervisor's conduct was ``sufficiently severe and pervasive to constituent a hostile work environment.'' Nonetheless, Judge Shedd granted summary judgment for the employer, finding no evidence that the plaintiff herself thought the work environment had been hostile. This ruling is impossible to reconcile with the facts of the case--the plaintiff had told her supervisor that his comments were offensive, she had reported the conduct to her supervisor, she had taken concrete steps to pursue the complaint, and she eventually quit her position. In another case, Judge Shedd reversed a magistrate judge's decision to deny summary judgment for an employer. In this case, the plaintiff's supervisor had harassed both the plaintiff and a number of other female employees. Yet Judge Shedd dismissed this case, against the recommendation of the magistrate, because the plaintiff had complained to two different people, a supervisor and the company's chief financial officer, but did not complain to the president of the company, as required by company policy. Judge Shedd ignored the fact that the company's policy also called for the supervisor and the CFO themselves to report the plaintiff's complaints to the president, which they failed to do. Judge Shedd also relied on the fact that the plaintiff's complaint referred to ``harassment,'' instead of ``sexual harassment.'' These were not merely cases in which Judge Shedd ultimately decided on the facts that discrimination had not taken place. These are cases in which he determined that the jury should not even be permitted to hear the plaintiff's claim. Judge Shedd dismissed the vast majority of race discrimination cases brought by African-Americans, before those cases could reach the jury. By contrast, in the five discrimination cases brought by white males, Judge Shedd allowed four to go to a trial. This pattern is very disturbing. The people of the Fourth Circuit deserve better from their Federal judges. In addition, Judge Shedd has often reached out from the bench to affect the litigation of the cases before him. In discrimination cases, he is known to raise arguments on behalf of the defense from the bench, even arguments not raised by the defendants themselves. He has gone so far as to dismiss cases on grounds not raised by the defendant. In one case, he initiated an inquiry into finances of an unemployed woman who had been granted pauper status by another Federal judge; Judge Shedd ruled that she did not deserve such status, in large part because of the money she had spent pursuing her claim, and recommended that the Fourth Circuit dismiss an appeal the woman had pending in a different suit. He published his conclusions, he said, because other judges may want to know of his personal findings shout this woman. The States of the Fourth Circuit have a large minority population, the highest percentage of African-Africans of any circuit in the country, and they deserve a fair judiciary, committed to protecting basic rights. For all of these reasons, I oppose this nomination. the administration can, and must, do better for the people of the Fourth Circuit. u.s. circuit court nominees

Mr. KENNEDY

Mr. KENNEDY. Mr. President, on October 17, 2002, the Senate passed the Medical Device User Fee and Modernization Act of 2002, ``MDUFMA''. Included in Title I of this bill is the authorization of medical device user fees. Performance goals, existing outside of the statute, accompany the authorization of medical device user fees. These goals represent a realistic projection of what the Food and Drug Administration's Center for Devices and Radiological Health and Center for Biologics Evaluation and Research can accomplish with industry cooperation. The Secretary of Health and Human Services forwarded these goals to the chairmen of the Committee on Energy and Commerce of the House of Representatives and the Committee on Health, Education, Labor and Pensions of the Senate, in a document entitled ``MDUFMA PERFORMANCE GOALS AND PROCEDURES.'' According to Section 101 of Title I of MDUFMA, ``the fees authorized by this title will be dedicated to meeting the goals set forth in the Congressional Record.'' Today I am submitting for the Record this document, which was forwarded to the Committee on Health, Education, Labor and Pensions on November 14, 2002, as well as the letter from Secretary Thompson that accompanied the transmittal of this document. I ask unanimous consent to print those items.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I oppose the confirmation of Judge Shedd to the Court of Appeals for the Fourth Circuit. His nomination is also opposed by a large number of individuals, law professors, bar association and civil rights groups across the country, because he has not shown the commitment to the protection and vindication of Federal rights that is essential for this high position in the judiciary. Judge Shedd has an unacceptable record in cases involving race and gender discrimination. In race discrimination cases, for example, he consistently grants summary judgment against African-American civil rights plaintiffs, preventing even close cases from reaching a jury, and he often does so with little or analysis. In one case, he granted summary judgment for the defendant after the EEOC determined there was a reasonable cause to find that the plaintiff was denied promotion and the denial was based on race. In another case, the plaintiff was denied a pay increase despite the recommendation of his immediate supervisor, where the employer was found by the State to have been discriminating against African-Americans on pay increases. Judge Shedd has a similar record in gender discrimination cases. He granted summary judgment for an employer in a sexual harassment case in which the male supervisor's conduct was so inappropriate that Judge Shedd himself stated that the supervisor's conduct was ``sufficiently severe and pervasive to constituent a hostile work environment.'' Nonetheless, Judge Shedd granted summary judgment for the employer, finding no evidence that the plaintiff herself thought the work environment had been hostile. This ruling is impossible to reconcile with the facts of the case--the plaintiff had told her supervisor that his comments were offensive, she had reported the conduct to her supervisor, she had taken concrete steps to pursue the complaint, and she eventually quit her position. In another case, Judge Shedd reversed a magistrate judge's decision to deny summary judgment for an employer. In this case, the plaintiff's supervisor had harassed both the plaintiff and a number of other female employees. Yet Judge Shedd dismissed this case, against the recommendation of the magistrate, because the plaintiff had complained to two different people, a supervisor and the company's chief financial officer, but did not complain to the president of the company, as required by company policy. Judge Shedd ignored the fact that the company's policy also called for the supervisor and the CFO themselves to report the plaintiff's complaints to the president, which they failed to do. Judge Shedd also relied on the fact that the plaintiff's complaint referred to ``harassment,'' instead of ``sexual harassment.'' These were not merely cases in which Judge Shedd ultimately decided on the facts that discrimination had not taken place. These are cases in which he determined that the jury should not even be permitted to hear the plaintiff's claim. Judge Shedd dismissed the vast majority of race discrimination cases brought by African-Americans, before those cases could reach the jury. By contrast, in the five discrimination cases brought by white males, Judge Shedd allowed four to go to a trial. This pattern is very disturbing. The people of the Fourth Circuit deserve better from their Federal judges. In addition, Judge Shedd has often reached out from the bench to affect the litigation of the cases before him. In discrimination cases, he is known to raise arguments on behalf of the defense from the bench, even arguments not raised by the defendants themselves. He has gone so far as to dismiss cases on grounds not raised by the defendant. In one case, he initiated an inquiry into finances of an unemployed woman who had been granted pauper status by another Federal judge; Judge Shedd ruled that she did not deserve such status, in large part because of the money she had spent pursuing her claim, and recommended that the Fourth Circuit dismiss an appeal the woman had pending in a different suit. He published his conclusions, he said, because other judges may want to know of his personal findings shout this woman. The States of the Fourth Circuit have a large minority population, the highest percentage of African-Africans of any circuit in the country, and they deserve a fair judiciary, committed to protecting basic rights. For all of these reasons, I oppose this nomination. the administration can, and must, do better for the people of the Fourth Circuit. u.s. circuit court nominees

Mr. KENNEDY

Mr. KENNEDY. Mr. President, on October 17, 2002, the Senate passed the Medical Device User Fee and Modernization Act of 2002, ``MDUFMA''. Included in Title I of this bill is the authorization of medical device user fees. Performance goals, existing outside of the statute, accompany the authorization of medical device user fees. These goals represent a realistic projection of what the Food and Drug Administration's Center for Devices and Radiological Health and Center for Biologics Evaluation and Research can accomplish with industry cooperation. The Secretary of Health and Human Services forwarded these goals to the chairmen of the Committee on Energy and Commerce of the House of Representatives and the Committee on Health, Education, Labor and Pensions of the Senate, in a document entitled ``MDUFMA PERFORMANCE GOALS AND PROCEDURES.'' According to Section 101 of Title I of MDUFMA, ``the fees authorized by this title will be dedicated to meeting the goals set forth in the Congressional Record.'' Today I am submitting for the Record this document, which was forwarded to the Committee on Health, Education, Labor and Pensions on November 14, 2002, as well as the letter from Secretary Thompson that accompanied the transmittal of this document. I ask unanimous consent to print those items.

Mr. KENNEDY

Mr. KENNEDY. Madam President, soon after the vicious attacks of September 11, it became clear that Congress needed to act on a bipartisan basis to win the war on terrorism and protect the country from future attack. Congress quickly approved strong bipartisan legislation authorizing the use of force against the terrorists and those who harbor them. It also enacted bipartisan legislation to provide aid to victims and their families, to improve airport security, to give law enforcement and intelligence officials enhanced powers to investigate and prevent terrorism, to improve border security, and to strengthen our defenses against bioterrorism. The September 11 attacks also demonstrated the need to consolidate overlapping functions and establish clear and efficient organizational structures within the Federal Government. I fully support these goals. Reorganization without reform, however, will not work. It is not enough to consolidate different agency functions, if the underlying problems relating to management, information sharing, and coordination are not also addressed. And we do the Nation a disservice if, in the course of reorganizing the Government, we betray the ideals that America stands for here at home and around the world. We know that our Nation faces a very serious threat of terrorism. To protect our national security in today's world, we need an immigration system that can carefully screen foreign nationals seeking to enter the United States and protect our Nation's borders. Our current Immigration and Naturalization Service is not up to these challenges. For years, INS has been unable to meet its dual responsibility to enforce our immigration laws and to provide services to immigrants, refugees, and aspiring citizens. The Lieberman homeland security bill included bipartisan immigration reforms that were carefully designed to correct these problems and bring our immigration system into the 21st century. It untangled the overlapping and often confusing structure of the INS and replaced it with two clear lines of command--one for enforcement and the other for services. It also included a strong chief executive officer to ensure accountability, a uniform immigration policy, and effective coordination between the service and the enforcement functions. On these key issues, the Republican bill moves in exactly the wrong direction. It transfers all immigration enforcement functions to the Border and Transportation Security Directorate. Immigration service functions are relegated to the Bureau of Citizenship and Immigration Services, which lacks its own Under Secretary. These agencies will have authority to issue conflicting policies and conflicting interpretations of law. The formulation of immigration policy--our only chance to achieve coordination between these dispersed functions--will be subject to the conflicting views of various officials spread out in the new Department. With its failure to provide centralized coordination and lack of accountability, the Republican bill is a blueprint for failure. The Republican bill also eliminates needed protections for children who arrive alone in the United States. Often, these children have fled from armed conflict and abuses of human rights. They are traumatized and desperately need care and protection. The Lieberman bill included safeguards, developed on a bipartisan basis, to ensure that unaccompanied alien children have the assistance of counsel and guardians in the course of their proceedings. Under this bill, immigration proceedings will remain the only legal proceedings in the United States in which children are not provided the assistance of a guardian or court-appointed special advocate. Finally, the Republican bill will seriously undermine the role of immigration judges. Every day, immigration courts make life-altering decisions. The interests at stake are significant, especially for persons facing persecution. We need an immigration court system that provides individuals with a fair hearing before an impartial and independent tribunal, and meaningful appellate review. The Republican bill undermines the role and independence of the courts and the integrity of the judicial process. It vests the Attorney General with all-encompassing authority, depriving immigration judges of their ability to exercise independent judgement. Even more disturbing, the bill gives the Attorney General the authority to change or even eliminate appellate review. This result is a recipe for mistakes and abuse. An independent judicial system is essential to our system of checks and balances. Immigrants who face the severest of consequences deserve their day in court. Today, many Americans are concerned about the preservation of basic liberties protected by the Constitution. Clearly, as we work together to bring terrorists to justice and enhance our security, we must also act to preserve and protect our Constitution. Unfortunately, the Republican bill undermines the civil rights and privacy safeguards that Senator Feingold and I worked to include in the Lieberman bill. In particular, I am disappointed that the civil rights officer in the new Department will not be subject to Senate confirmation, and that there will not be a designated official in the Inspector General's Office to investigate civil rights violations. These changes to the civil rights and privacy safeguards are particularly disturbing in light of the fact that the bill explicitly authorizes the new Department to engage in the controversial practice of data mining. This practice allows the Government to establish a massive data base containing public and private information, with files on every American. The bill provides no language ensuring that the Government acts in compliance with Federal privacy laws and the Constitution. On the issue of worker rights, we should remember that union members risked and lost their lives and saved countless others through their actions on September 11. We will never forget the fine example that firefighters, construction workers, and many Government workers set that day. Union workers have also shown great bravery and sacrificed mightily in the service of homeland security since September 11. The postal workers and the hospital worker killed as a result of bioterrorism were all union members. The brave flight attendant whom the President recognized in the State of the Union Address for preventing terrorism was a member of a union. The dedication and resolve of these union members truly represents the best of America. Over 43,000 of the Federal workers affected by the proposed Government reorganization are currently union members. On September 11, unionized Federal workers played critical roles at both the World Trade Center and the Pentagon as they worked round the clock to make our homeland secure. These are the workers who risk their lives each day to protect our Nation's borders. This bill completely undermines the collective bargaining rights of the unionized employees transferred to the new Department on whom our security depends. It gives the President unlimited and unchecked authority to eliminate those collective bargaining rights. He only needs to claim that continued union rights would interfere with homeland security. Federal workers will also have no opportunity to meaningfully participate in creating the personnel system for the new Department. Moreover, this bill does not include any Davis-Bacon protections, despite longstanding Federal policy that workers should be paid prevailing wages on Federal construction projects. This bill displays a contempt for the Federal workers who serve with dedication every day to keep our Nation Safe. Denying Federal workers fundamental rights will also undermine our Nation's homeland security at a time when we can ill afford it. Among the many lessons we have learned since September 11 about lapses in intelligence efforts connected with those events is that Federal workers need protection to be able to speak out when they believe our Nation's security is at risk. Without the protections afforded by a union, Federal workers will be far less likely to speak out and protect the public for fear of unjust retaliation. The Republican bill's fundamental flaws were compounded to by the last-minute addition of numerous special-interest provisions. These provisions include the creation of new procedural barriers for the issuance of emergency security rules deemed essential to protect travelers by the Transportation Security Agency; an earmark for a new homeland security research center program at Texas A&M; and an exemption from the open-meetings requirement of the Federal Advisory Committee Act. The bill gives broad liability protection to manufacturers of ``anti-terrorism technology'' for claims arising from acts of terrorism. This provision will reduce the incentive of industry to produce effective antiterrorism products and limit the ability of victims to recover if future terrorist acts occur. It also shields from liability pharmaceutical companies that produce vaccine additives such as Thimerosal--the subject of pending litigation initiated by parents of autistic children. This provision has nothing to do with bioterrorism preparedness or homeland security--and everything to do with rewarding a large contributor to the Republican Party. While I agree with my Republican colleagues that we need to reorganize the Government in responses to the challenges that we now face, I cannot support the deeply flawed bill now before the Senate. In too many aspects, it misses the opportunity for real reform and is likely to undermine, not strengthen, the security of our homeland.