Congressional efforts to dismantle federal affirmative action
programs were initiated during the 104th Congress, continued throughout
the 105th Congress, and subsided during the 106th Congress, as the
debate moved decidedly to the courts and the states. In addition,
Congressional efforts to address the discriminatory practice of
racial profiling in the performance of traffic stops began in the
105th Congress and continues today.
Legislation to ban most federal affirmative action programs introduced
in the 104th and 105th Congresses would have prohibited the federal
government from "granting a preference" to individuals based on
race, color, national origin, or gender in connection with a federal
contract or subcontract, federal employment, or any other federally
conducted program or activity. The legislation did not succeed in
either Congress. Various other attempts to dismantle specific federal
affirmative action programs also met with failure during the 105th
Congress.
Two bills dealing with affirmative action were introduced during
the 106th Congress. Sen. Jesse Helms (R-NC) introduced S. 46, a
bill to amend the Civil Rights Act of 1964 to make preferential
treatment based on race, color, sex, religion or national origin
an unlawful employment practice. It was placed on the Senate calendar
on January 20, 1999, but did not receive any further action before
Congress adjourned sine die. Rep. Tom Campbell (R-CA) introduced
H.R. 2509 to prescribe an alternative program for providing a benefit
or employment preference under federal law for those federal affirmative
action programs invalidated by the courts. It was referred to the
House Judiciary Committee where it received no further action before
Congress adjourned sine die.
The battle over the legitimacy and viability of government-sponsored
affirmative action has decidedly moved to the courts and the states.
Ballot initiative efforts, spearheaded by Ward Connerly, a former
California Regent and founder of the American Civil Rights Institute,
have been successful in California and Washington. However, efforts
to put an anti-affirmative action initiative on the 2000 ballot
in Florida failed. Nonetheless, efforts to prohibit affirmative
action in Florida got a boost last year when Governor Bush issued
an Executive Order banning it in state contracting and replacing
it in state university admissions with a policy that guarantees
state college admission to the top 20% of all qualifying senior
high school students.
The federal courts have been involved in several challenges to
affirmative action in higher education in the past several years,
most notably in Washington, Texas and Michigan. Likewise, the courts
have been involved in federal contracting challenges. In 1995, the
Supreme Court held in Adarand v. Pena, that affirmative action
programs in federal contracting must meet the strict scrutiny test
to survive constitutional muster. It returned the case to the lower
court; now, the lower court’s determination of compliance is being
appealed.
Racial profiling has also been a growing concern nationally, as
both anecdotal and statistical reports from around the country have
come to light. More than eleven states, including Missouri, Rhode
Island and Alabama, have passed laws to address the issue and many
local jurisdictions have voluntarily begun investigations into the
practice.
In the 105th Congress, Rep. John Conyers (D-MI) introduced a bill
addressing racial profiling as a national issue. The bill passed
the House but stalled in the Senate. In the 106th Congress, Rep.
Conyers and Sen. Frank Lautenberg (D-NJ) introduced companion bills
in both houses of Congress calling for the Attorney General to gather
data on enforcement practices at traffic stops to determine whether,
how and to what degree traffic stops are racially or ethnically
motivated. Neither bill received floor consideration.
Current Status
Sen. Jesse Helms (R-NC) introduced S. 78 on January 22, 2001,
to make preferential treatment based on race, color, religion, sex
or national origin an unlawful employment practice except under
currently recognized, limited circumstances. Although placed directly
on the Senate calendar, it is unlikely to receive action this Session.
While congressional activity over affirmative action has practically
ceased, the issue continues to be litigated in federal and state
courts. Most notably, the case in the 6th Circuit challenging the
constitutionality of the University of Michigan Law School affirmative
action admission plan was decided on May 14, 2002. The court held
that states have a compelling interest in achieving diversity in
education that justifies the use of a narrowly tailored race-conscious
admissions program. It is likely that this case will wind up in
the Supreme Court.
So far, the Supreme Court has been cautious about reviewing affirmative
action cases. Originally agreeing to review Adarand v. Pena,
a case involving affirmative action in federal contracting, it dismissed
the appeal on November 27, 2001, on procedural grounds, thereby
not disturbing the federal government’s Disadvantaged Business Enterprise
Program. In the educational arena the Supreme Court declined to
review two disparate decisions from the 5th and 9th Circuits involving
cases challenging the constitutionality of affirmative action admission
plans in higher education. One case permits the University of Washington
Law School to award preferences to applicants on the basis of racial
diversity, and the other prevents the University of Texas Law School
from doing so.
In an earlier case, decided by the U.S. District Court for the
District of Columbia, in its decision on a motion to dismiss, the
court said that written directions by the Army to promotion boards
in effect at the time the lawsuit was filed, which urged the boards
to consider “past, personal or institutional discrimination,” are
unconstitutional on equal protection grounds. While this particular
policy is no longer in effect, the district court’s decision still
may have a chilling effect on current affirmative action policies
of the military.
At the beginning of the 107th Congress, Attorney General John
Ashcroft announced his support for the Conyers bill from the last
Congress and the Administration’s desire to conduct a national study
of the problem of racial profiling. Several profiling bills were
introduced, but not acted upon during the 1st Session. On January
22, 2001, Sen. Thomas Daschle (D-SD) introduced S. 19, which contains
a racial profiling provision that would require the Attorney General
to gather specific, nation-wide data on traffic stops and report
the results to Congress. In the House, Delegate Eleanor Holmes Norton
(D-DC) introduced H.R. 1907, the Racial Profiling Prohibition Act,
on May 17, 2001. H.R. 1907 would prohibit racial profiling and require
prevention programs on the state level for disbursement of federal
highway funds.
On June 6, 2001, Rep. John Conyers (D-MI) and Sen. Russ Feingold
(D-WI) introduced similar bills addressing racial profiling. H.R.
2074 and S. 989 would explicitly prohibit racial profiling, provide
funding to assist states in developing data collection programs,
and require the Attorney General to gather statistics on race-based
traffic stops and report to Congress regularly on the subject. The
Feingold bill, which is the Senate companion bill to the Conyers
bill, was the subject of a Senate Judiciary subcommittee hearing
on August 1 at which the Honorable Dennis Archer, Mayor of the City
of Detroit, presented a written statement on behalf of the ABA.
No further action occurred during the 1st Session because both
the House and Senate Judiciary Committees changed their primary
focus to anti-terrorism and national security measures after the
terrorist attacks. Legislative activity during the 2nd Session has
focused more on terrorism-related profiling than on profiling involving
traffic stops. The topic has arisen in several contexts during the
course of ant-terrorism hearings and bills addressing racial profiling
by U.S. customs personnel have been introduced. On August 6, 2002,
the President signed into law the Trade Act of 2002, which contained
a provision increasing the immunity of Customs officers from civil
suits arising from their activities. This grants Customs officers
a higher level of immunity than any other federal law enforcement
officers despite recent studies demonstrating a possible pattern
of racial profiling in searches conducted by Customs officers at
airports and border crossings.
ABA Policy
The ABA endorses legal remedies and voluntary actions that take
into account as a factor race, national origin, or gender to eliminate
or prevent discrimination, including the collection of data to determine
the extent to which racial profiling is used by law enforcement
during traffic stops.
Key Points
- This nation has been engaged in a
debate over the legality, fairness, and necessity for affirmative
action programs as a means to redress past discrimination, counter
current discrimination and prevent future discrimination since
1995.
- Eliminating federal affirmative action
programs will end the federal government's leadership role in
the effort to end discrimination and achieve a society where equal
opportunity under the law is a reality.
- Eliminating federal affirmative action
programs will send a powerful message to state legislatures to
dismantle similar state-based programs.
- Prohibiting the federal government
from using carefully crafted affirmative action measures that
comply with recent Supreme Court rulings will restrict future
gains by women and minorities in achieving economic, employment,
and educational equality.
- Bias-based profiling by law enforcement
poses a threat to both the rights and safety of individuals traveling
our nation’s roadways and the effective enforcement of our nation’s
health and safety laws.
- Public confidence in our justice system
is being eroded by the belief that racial and ethnic profiles
are used by law enforcement officials to conduct traffic stops
and automobile searches.
- Although ample anecdotal evidence
exists, data collection and a statistically reliable analysis
of this problem is a necessary step to address the issue.
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Last Updated: November 11, 2002
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Bar Association