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2005
Legislative Priorities
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A. Affirmative Action
This nation has been engaged in a debate for the last decade over the legality, fairness, and necessity for affirmative action programs as a means to redress past discrimination. Congressional efforts to dismantle federal affirmative action programs were pursued vigorously throughout the 104th and 105th Congress. Many bills to prohibit 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 were introduced in both Congresses, but none succeeded. During the 106th and 107th Congresses, additional bills to ban all or select federal affirmative action programs were introduced, but none received significant action.
After suffering a string of Congressional defeats, opponents of affirmative action turned to the state legislatures and the courts. During the late 1990s, ballot initiative efforts, including Proposition 209, spearheaded by Ward Connerly, a University of California Regent and founder of the American Civil Rights Institute, were successful in California and Washington, but failed in Florida in 2000. The following year, Florida Governor Jeb Bush issued an Executive Order banning affirmative action in state contracting and replacing it in state university admissions programs with a policy that guarantees state college admission to the top 20% of all qualifying senior high school students.
The federal courts repeatedly have been involved in challenges to affirmative action in higher education and federal contracting. 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. The case, which had been returned to the lower court for specific determinations, was again appealed to the Supreme Court in 2001, this time unsuccessfully.
Affirmative action in education has been challenged in several circuits over the last several years. In 1996, the 5th Circuit, in Texas v. Hopwood, struck down the race-conscious admissions policy and rejected Justice Lewis Powell's rationale that diversity in education can be a compelling government interest justifying race-conscious admissions programs. In 2000, the 9th Circuit upheld a race-conscious admissions program at the University of Washington School of Law. The Supreme Court denied certiorari in that case because the issue was moot, since a referendum was passed by the state in 1998 banning affirmative action programs. In 2001, the 11th Circuit overruled the University of Georgia's race-conscious admissions program (Johnson v. University of Georgia) because it was not narrowly tailored. Noting that there was no need to go further, the court nevertheless asserted that Justice Powell's opinion is not binding. This case was important because the UGA program was challenged under the 14th Amendment and Title VI of the Civil Rights Act of 1964, which also covers private institutions receiving federal funds.
In May 2002, the 6th Circuit Court of Appeals overturned the district court's ruling in Grutter v. Bollinger and upheld the constitutionality of the University of Michigan Law School's admissions program, affirming that diversity in higher education is a compelling interest that permits the use of narrowly tailored, race-conscious admissions programs. The Supreme Court granted the petition for certiorari in December 2002 and, in an unusual move, joined the similar University of Michigan undergraduate case, which was pending before the 6th Circuit. In that case, the district court had reached a different result than it had in the law school case and upheld the constitutionality of the University's program. This marked the first time the Supreme Court revisited the issue of affirmative action in higher education since its ruling in Bakke in 1978.
More than 80 Amicus briefs were filed. The Administration's Amicus brief argued that the University's policy amounts to a quota system and is not narrowly tailored, since neutral alternatives are available to "ensure that public institutions are open and available to all Americans.” The American Bar Association's brief, addressing only the law school case, first acknowledges that diversity in education is itself compelling interest and then proceeds to argue that diversity in legal education also is a compelling state interest sufficient to permit the use of racial preferences because it is necessary to assure diversity of the bar, which is vital to the bar's ability to serve all Americans fully and fairly and to ensure the legitimacy of the legal system.
B. Racial Profiling
Congressional concern over racial profiling erupted in the 105th Congress after anecdotal and statistical reports on racial profiling at traffic stops from around the country started receiving heightened publicity. In certain jurisdictions, prior to federal congressional activity, lawsuits were filed against state police in a number of jurisdictions. As a result of court orders, as well as, independently many localities began to collect data on the incidence of traffic stops by race to determine if and how improper profiling was being done, and legislation to end profiling was introduced.
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 U.S. Attorney General to gather national statistics 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.
At the beginning of the 107th Congress, Attorney General John Ashcroft announced his support for the Conyers bill from the 106th Congress and the Administration's desire to conduct a national study of the problem of racial profiling. Several profiling bills were introduced, but only one received a congressional hearing, Feingold (D-WI) S.989. No further action occurred on the bill. After September 11, 2001, national concern over profiling reflected the civil rights concerns of the post-911 world and legislative attention for the remainder of the 107th Congress focused more on terrorism-related profiling than on profiling involving traffic stops.
108TH CONGRESS WRAP-UP
A. Affirmative Action
On June 23, 2003, the Supreme Court, in Grutter v. Bollinger, affirmed its earlier Bakke decision, holding that diversity in education is, in and of itself, sufficient to constitute a compelling government interest. Upholding the admissions policies of the law school, the Court said that the Constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” Even though the Supreme Court stressed the need for deference to the academic autonomy of colleges to devise their own admissions programs, the undergraduate admissions program was struck down because it automatically gave every minority applicant a certain percentage of the points necessary to gain admission and, therefore, was not narrowly tailored.
While affirmation of the earlier Bakke holding was heralded as a great legal victory, it certainly has not ended the debate on affirmative action in this country. Soon after the Grutter decision was announced, California Regent Connerly, who had spearheaded efforts to pass Proposition 209 in 1996, announced his intention to pursue a similar ballot initiative in Michigan. In January 2004, organizers formed the Michigan Civil Rights Initiative (MCRI) and started a petition drive to gather the 317,757 signatures of registered voters required to place the initiative on the November 2004 ballot. The petition proposes to amend the Michigan constitution “to prohibit the University of Michigan and other state universities, the State and all other entities from discriminating or granting preferential treatment based on race, sex, color, ethnicity or national origin.” Legal challenges forced the group to scrap its plan to get on the ballot in 2004. Despite the setback, by July, the group had initiated a new campaign drive to place the question on the statewide ballot in 2006.
Grutter overruled the 5th Circuit’s earlier decision in Texas v. Hopwood, which had prevented any consideration of race in education since 1996 in Texas. (The other states covered by the 5th Circuit were exempt because they have been operating under court-ordered desegregation plans). In August 2003, the Board of Regents of the University of Texas system authorized its component institutions to tailor their admissions policies to meet their particular needs by following the guidelines established by Grutter.
In Colorado, a bill to ban affirmative action in public hiring, contracting and admissions to public colleges and universities was defeated by 1 vote on March 1, 2004. Although called the “Colorado Civil Rights Act,” the bill would have nullified affirmative action plans currently in place at public universities and in government hiring and contracting.
Even though Grutter affirmed the use of affirmative action principles in admission decisions, the University of Michigan and several other colleges are reporting declining numbers of African-Americans in their freshman classes for 2004-2005 school year.
In a related matter, on October 7, 2003, California voters convincingly rejected Proposition 54, which would have restricted state agencies from collecting racial and ethnic data. Proposition 54 was the brainchild of Regent Connerly. Dubbed the "Racial Privacy Initiative" by supporters and the "Information Ban" by opponents, it never received much institutional support, and even Republicans, who strongly backed Proposition 209, were lukewarm. Opponents of the ban argued that the collection of racial information is important for many reasons, such as calculating federal funding for some government programs in undeserved areas and is necessary in order to measure progress toward our goal of achieving a society that is based on social equality.
B. Racial Profiling
In June 2003, the Justice Department released its "Guidance Regarding the Use of Race by Federal Law Enforcement Agencies.” The stated objective of this directive was to ban racial profiling by federal officers, but an exception permitted racial profiling if used for "national security" purposes.
Referencing the Administration’s directive and citing a need to more fully address this issue, on February 26, 2004, Representative Conyers and Senator Russ Feingold (D-WI) introduced the “End Racial Profiling Act of 2004.” Their identical bills, S. 2132 and H.R. 3847, would have banned the practice of racial profiling, defined as the reliance of law enforcement agents “on race, ethnicity, religion or national origin” in selecting individuals to scrutinize in the absence of evidence indicating involvement in a crime or intent to commit a crime by similar individuals. The bills also would have directed the U.S. Attorney General to develop standards for data collection; require data collection by federal, state, and local law enforcement agencies to monitor progress; require the Attorney General to make annual reports to Congress; assure state and local compliance with the data collection requirements by conditioning certain federal law enforcement grants upon participation in it; and create a private cause of action for individuals victimized by the practice of prohibited profiling. Other bills in the 108th Congress that addressed racial profiling included S. 16, the “Equal Rights and Equal Dignity for Americans Act of 2003,” introduced by Senate Minority Leader Tom Daschle (D-SD), and S. 2112, the “Uniting Neighborhoods and Individuals to Eliminate Racial Profiling Act of 2003,” introduced by Senator George Voinovich (R-OH). None of these bills received any action.
In March, the House passed the surface transportation reauthorization act, HR 3, with a provision for grant funding of state and local efforts to monitor and combat racial profiling, including profiling conducted to select individuals to subject to traffic stops. The bill is currently being considered in the Senate Commerce Committee after having passed the two other Senate committees with jurisdiction. There is strong likelihood that the bill will advance to the floor and that the racial profiling section will be considered in conference later this year.The ABA endorses legal remedies and voluntary actions that take into account as factors race, national origin, or gender to eliminate or prevent discrimination, including the collection of data to determine the extent to which racial or ethnic profiling is misused by law enforcement to enforce traffic laws.
- Eliminating affirmative action in legal education jeopardizes the
diversity of the bar, which is vital to the bar's ability to serve all
Americans fully and fairly and essential to ensuring the legitimacy
of the legal system.
- 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.
- 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 law enforcement officials use racial profiling during routine traffic stops and other law enforcement activities, including antiterrorism efforts.
ABA Letters and Testimony
ABA Grassroots Legislative Action Center
ABA Individual Rights and Responsibilities Section
ABA Commission on Racial and Ethnic Diversity in the Profession
ABA Commission on Women in the Profession
Race and the Law: A Special Report by the ABA Journal (February 1999)
Other Links
Leadership Conference on Civil Rights
Citizens' Commission on Civil Rights
Mexican American Legal Defense and Educational Fund
NAACP Legal Defense and Educational Fund Inc.
NOW Legal Defense and Education Fund
People for the American Way
American Association of University Professors
Staff Contact: Denise Cardman, Senior Legislative Counsel and Ellen McBarnette, Legislative Counsel, for Racial Profiling.
Updated: April 15, 2005