S5926 CONGRESSIONAL RECORD — SENATE May 1, 1995

to regulate interstate commerce was so farreaching that it could prohibit a farmer from

growing a patch of wheat for his own bread.

The limitations on the powers of the federal

government suddenly seemed to evaporate.

A fourth constitution thus emerged when

the Supreme Court by the end of the 1930s

brushed aside the doctrine of enumerated

powers, which had limited Congress by requiring reasonably clear grants of authority

in the Constitution. The Court about the

same time also renounced ‘‘due process’’ as a

restriction on state or federal legislation.

Then, having demolished all those barriers

to regulation, the Court for the rest of the

20th century began erecting hurdles of a different kind by interpreting the Bill of Rights

more expansively and reading the Fourteenth Amendment to limit the states in

novel ways. It announced that the 1868 Fourteenth Amendment without saying so had

stripped the states of virtually all the powers that the 1791 Bill of Rights had said were

outside the charter of the federal government. It also held suddenly in 1964 that the

Fourteenth Amendment had made unconstitutional all houses of state legislatures that,

like the U.S. Senate, were not based on equal

population. By the end of the century the

Supreme Court had begun invoking ‘‘due

process’’ again, but this time to invalidate

laws it concluded unduly limited personal

liberty.

* * * * *

Most real political revolutions have left

their lasting traces on the Constitution. The

Republicans after the Civil War secured the

three amendments that ultimately ended racial inequality under law, and turned out to

do far more. The pre-World-War-I Progressives, while they were democratizing state

governments, also switched control of the

Senate to the people, gave the federal government the tax base to grow, and soon

afterward helped secure the vote for women.

The New Deal even brought new access to

liquor while rewriting the Constitution by

restaffing the Supreme Court.

The time will never be better to update a

marvelous and rightly cherished document,

perhaps to correct some mistakes in how it

has been interpreted, but most important to

readjust its balances to fit the needs of a new

century. Its authors would have expected no

less.

∑ Mr. SIMON. Mr. President, there is

∑

AFFIRMATIVE ACTION

fmore and more discussion on affirmative action these days.

Most of those who question affirmative action are the same people who opposed the civil rights legislation.

But there is no question that, like

any good thing, affirmative action can

be abused.

I ask that an excellent Los Angeles

Times editorial titled, ‘‘Glass Ceiling?

It’s More Like a Steel Cage’’ be printed

in the RECORD, as well as a tongue-incheek column by Robert Scheer, ‘‘Who

Needs Affirmative Action?’’ and a column that I wrote for the newspapers in

Illinois discussing this subject.

The material follows:

[From the Los Angeles Times, Mar. 20, 1995]

GLASS CEILING? IT’S MORE LIKE A STEEL

CAGE—BUSH PANEL FINDS LITTLE ROOM AT

TOP FOR WOMEN OR NONWHITES

In the heated debate over affirmative action, some who want to abolish all such programs suggest that lots of white males are

being unfairly shunted aside in favor of lots

of African Americans, Latinos, Asians and

white women. However, there simply are no

facts to support this. Indeed, according to a

bipartisan commission appointed by thenPresident George Bush, the senior ranks are

still populated almost exclusively by white

males.

The findings by the Glass Ceiling Commission, a panel of business executives and legislators, are important and especially timely.

It is expected that an initiative calling for a

blanket rejection of policies that allow race,

ethnicity and gender to be taken into account in hiring, promotion and college admissions will make it onto the California

state ballot.

In Washington, President Clinton, mindful

of the evident exodus of angry white men

from the Democratic Party, for starters has

ordered an evaluation of federal affirmativeaction programs. That’s defensible and could

prove useful. But too many in Congress are

rushing to jump on the anti-affirmative-action bandwagon, including Senate Majority

Leader Bob Dole. Ironically, long before Dole

made his presidential ambitions public, he

sponsored the very bill that created the federal panel to study the situation of minority

men and all women in American industry.

And it is that panel, in reporting its findings

last week, that turned up so little evidence

of progress.

The facts are simple. White male managers

dominate the senior levels at the top 1,000

U.S. industrial firms. They also dominate

the top 500 business firms. In the top echelon

of U.S. commerce, no less than 97% of the positions at the level of vice president and

above are held by whites, the panel found.

Between 95% and 97% of these senior executives are male. They have a lock on most of

the top jobs, while most minority men and

women and most white women struggle to

crash the glass ceiling.

The commission said that one case of the

paucity of promotions was the fear and prejudice of white men. Of course that is only

part of the problem. More minorities and

women must be given access early on to educational and social opportunities that lead

to business success. But even education does

not always level the playing field. Asian

Americans are nearly twice as likely to hold

college degrees as the general population,

yet they remain much less likely to become

executives and managers. Do racial stereotypes block their promotion?

Black men with professional degrees earn

79% of the pay of their white male counterparts. Black women with professional degrees earn even less; they earn, on average,

only 60% of what white males do. Latinos,

who are less likely to have the advanced degrees that foster advancement in companies,

are ‘‘relatively invisible in corporate decision-making positions,’’ the report says.

Their visibility should increase as their

qualifications and numbers increase. Latinos

are also hampered by pernicious stereotypes,

including the misperception that most

Latino workers are foreign-born, the panel

maintains.

The Glass Ceiling Commission based its

findings on hard information, not unsubstantiated fears. Facts, and nothing but, should

inform the intense debate over affirmative

action—and the decisions that will determine how this nation can fairly handle the

moral obligation of opening the doors of opportunity to all who knock.

[From the Los Angeles Times, Mar. 20, 1995]

WHO NEEDS AFFIRMATIVE ACTION?

(By Robert Scheer)

Forget affirmative action. Maybe it once

was a necessary tactic but its time is clearly

gone. True, there used to be slavery and segregation and women didn’t have the vote but

that’s all ancient history. C’mon, blacks and

women have all the power now. Just look at

the O.J. trial.

Try getting a decent job if you’re a white

man. You don’t see my name on the masthead of this paper. What kind of meritocracy

is this if my merit isn’t rewarded the way I

think it ought to be?

I’m not making this up, folks. The census

stats back me up. Minorities and women now

hold 5% of senior management positions, and

those used to be white-guy jobs. Even among

Fortune 1,000 companies, women now have

3% of the top slots, according to last week’s

report by the bipartisan federal Glass Ceiling

Commission. So far, black men don’t have

any of the top jobs, but if affirmative action

isn’t stopped, who knows what could happen?

Don’t try to paint me like some kind of

racist for saying this, like I’ve got something against black men. Our beef is more

with women than with black men, who are

going nowhere fast. Even though almost

800,000 black students a year graduate from

college, many of them business majors, they

don’t have what it takes to get to the top.

Most of them still don’t play golf. That’s

what a lot of white executives told the federal commission, which, incidentally, was

created by the Bush Administration, so its

results are reliable. One white manager told

the truth: that, in hiring, ‘‘What’s important

is comfort, chemistry, relationships and collaborations.’’ That’s why black, college-educated professional men earn only 71% of

their white counterparts on the bell curve:

The comfort level is too low.

The real threat is from women, with whom

white men have a longer history of relationships. I hesitate to bring it up because they

vote and it’s better to have white women believe that affirmative action is a black

thing. But take what’s called ‘‘middle management.’’ Black men account for only 4% of

those positions, but almost 40% of middle

managers are women. Unless you marry one

of them, you’re out of luck, and what does

that tell you about who wears the pants?

The big problem up the road is that you’ll

have to get along with those women, what

they call networking, just to get a job. What

does that say about traditional values when

a man has to worry about what a woman

thinks of his performance? Meritocracy, in

the wrong hands, can be a killer. No wonder

the federal commission concluded that

‘‘Many middle- and upper-level managers

view the inclusion of minorities and women

in management as a direct threat to their

own chances for advancement.’’ They’d be

stupid not to.

But we don’t have a chance a turning back

the tide unless we eliminate the discrimination against white males in the universities.

On the nine campuses of the University of

California, white men were 40% of the student body in 1980, and now they’re a miserable 24%, less than half the number of

women. Girls were always better at the

school stuff but you could count on them to

drop out along the way. Another threat is

the 12% who are Latino, but Proposition 187

should scare them off. Same for the Asians,

who outnumber white males at UC. I know

that Asians are not covered by affirmative

action, but even with round-the-clock tutoring, we can’t keep up with them. And none of

this would have happened if the blacks

hadn’t stated all this. You don’t see blacks

endangered at UC—they went up a full twotenths of a percent in the past 15 years, from

3.8% to 4%. They’re taking over.

Don’t get me wrong, I’m not against a

level playing field, and I know that a lot of

blacks come from disadvantaged backgrounds due to poverty. After all, census

data show that almost half of black children
May 1, 1995 CONGRESSIONAL RECORD — SENATE S5927

live in poverty, which shows that they have

lost the spirit of individual responsibility.

We have got to stop coddling them. The answer is to end poverty by eliminating food

stamps, school lunches and infant nutrition

programs that provide such an irresistible

incentive for people to raise their kids in

lousy neighborhoods. If poor people want a

good job, they should get it the way the rest

of us do. Call an uncle or a business associate

of your father. Invest your inheritance. Get

active in a prestigious church or a good golf

club. Blacks are going to make it when they

learn to act and look like everyone else.

I am for social policies that are colorblind,

just as the founders of our nation were.

For me, all I want is my country back. You

know what I mean: a return to traditional

values where the white man is king, even if

his woman has to work.

THE PROPER ROLE FOR AFFIRMATIVE ACTION

‘‘Affirmative action’’ is not-so-suddenly

becoming a major topic of discussion.

Affirmative action is like religion or education: A good thing, but it can be abused.

Affirmative action means opportunity and

fairness. It does not mean quotas. It does not

mean hiring unqualified people.

Some believe that affirmative action hurts

minorities and women and those with disabilities, because when people secure jobs

there will be some who say, ‘‘He (or she) only

got that because of being a minority.’’ Or a

woman or being disabled. They believe that

it is demeaning for people of ability.

The distinguished African American writer

Shelby Steele properly suggests that we are

troubled by ‘‘race fatigue’’ and ‘‘racial anxiety.’’ He oppose affirmative action and

wrongly—in my opinion—calls the opportunities that result ‘‘entitlements.’’

No one is entitled to a job or an opportunity because of race or gender or ethnic

background.

I accept the idea that diversity in our society needs encouragement and is good for us.

If, for example, someone employs 500 people—and they all happen to be white males—

it still may not be possible to prove discrimination. One answer for that situation is to go

through the lengthy legal process of proving

discrimination.

A better answer is affirmative action,

where that employer understands that his

business should not compromise quality, but

opportunity should be given to those who

don’t fall into the usual personnel pattern.

Employing people on the basis of ability is

just good business, and affirmative action

encourages good business.

My office is an example. If I were to hire

everyone from Chicago or from Southern Illinois, the people of Illinois would regard

that as strange. I look for diversity in geography, and it does not compromise quality. I

don’t lower my standards when I choose to

hire someone from central Illinois.

In the same way, I have consciously made

sure that in my employ there are African

Americans, Latinos, Asian Americans and

people with disabilities. Anyone who knows

my office operation knows that we have not

compromised quality to do this.

Has this harmed the people of Illinois? To

the contrary, it has helped them and it has

helped me.

To move away from affirmative action,

back to a situation where discrimination has

to be proven to bring about change, invites

clogging the courts with endless litigation,

and denying opportunity to many.

A federal judge in Texas ruled that the

University of Texas law school can set a general goal (not a rigid quota) of admitting 10

percent Mexican Americans and 5 percent African Americans, but if the school lowers it

standards to reach those goals, that is unconstitutional.

That strikes many legal scholars as sound.

Interestingly, if that same school gives

preference for admission to children of alumni—who are overwhelmingly white—no one

objects to that. But if steps are taken to diversify the student body, some of the same

alumni object.

Complicating all of this is the fact that

many Americans are out of work. The opportunity for people of limited skills to have a

job is declining, and will continue to decline.

The person in that situation rarely says,

‘‘I’m not working because I don’t have the

skills that are needed.’’

It is often easier to say, ‘‘I don’t have a job

because a black [or a woman or a white or

someone else] got the job I should have.’’

And so tensions rise.

The answer is not to get rid of affirmative

action, but to work on jobs programs for

those of limited skills, expand education opportunities for all, and increase efforts to

give training (including reading and writing)

to those who are unemployed.

We should diversify opportunity, and at

the same time see that everyone has the

basic tools to function effectively.

f ∑

AFFIRMATIVE ACTION: AID IN

DOING THE RIGHT THING

∑ Mr. SIMON. Mr. President, I have

been inserting into the RECORD items

on affirmative action from time to

time because I am concerned that the

distortion of affirmative action can result in loss of opportunity for many

Americans.

Columnist William Raspberry had an

op-ed piece in the Washington Post,

and in other newspapers in which his

column is circulated, on affirmative

action.

It appeared during the days when

Congress was in recess, and many of

my colleagues may not have seen it.

It is simple common sense, and we

seem to lack that so often.

I ask that the William Raspberry column be printed in the RECORD.

The column follows:

AFFIRMATIVE ACTION: AID IN DOING THE RIGHT

THING

(By William Raspberry)

It was 1967, and I had just taken my new

wife—a Washington native—on her first visit

to my home state of Mississippi.

She had heard all the horror stories of racial mistreatment, and she was pleasantly

surprised at the way white salesclerks

seemed to be going out of their way to be

nice. She was particularly intrigued by one

middle-aged white clerk at the J.C. Penney’s

in Tupelo. For some reason, this woman,

having learned that we were from ‘‘up

north,’’ wanted to talk—even after we’d paid

for our purchases.

Just as we were about to make our final effort to leave, her face lit up. She caught the

attention of a black woman across the store

and beckoned her to come over.

‘‘This,’’ she said, introducing us, ‘‘is our

new salesclerk.’’

I don’t suppose I’ll ever forget the humiliations, large and small, of growing up under

the American apartheid that used to be the

rule in the Deep South. But I’ll also remember the pride this one white woman displayed

in the fact that her boss had done the right

thing. It was almost as if she herself had

been somehow redeemed.

It’s something I think of when I hear wellmeaning people say that affirmative action

is ultimately demeaning to minorities and it

would be better to just let merit be the rule.

It’s reasonable to punish discrimination,

they say, but an artificially produced diversity comes close to the discredited practice

of setting racial or sexual quotas; worse, it is

tantamount to acknowledge that minorities

and women are inferior.

It came back to me the other day when a

colleague called my attention to Katha

Pollitt’s column in the March 13 issue of The

Nation magazine. This liberal publication

has been a staunch advocate of affirmative

action and diversity and all the things that

give minorities and women all those warmfuzzy feelings. But listen to this one passage

from Pollitt’s piece:

‘‘In the 13 years I’ve been associated with

The Nation, we’ve had exactly one nonwhite

person (briefly) on our editorial staff of 13,

despite considerable turnover. And we’re not

alone: The Atlantic has zero nonwhites out

of an editorial staff of 21; Harper’s, zero out

of 14; The New York Review of Books, zero

out of nine; The Utne Reader, zero out of 12.

A few do a little better, although nothing to

cheer about: The Progressive, one out of six;

Mother Jones, one out of seven; In These

Times, one out of nine; The New Republic,

two out of 22; The New Yorker, either three

or six, depending on how you define ‘editorial,’ out of 100 plus, . . .’’

It’s a passage that could fuel right -wing

radio talk shows for months. But that wasn’t

Politt’s point. Her point, which seems unaccountably difficult to grasp, is that it’s not

necessarily bigots and hypocrites that stand

in the way of the ‘‘diversity’’ so many of us

favor; it’s the fact that people tend not to

pay attention to unpleasant facts that they

can as easily ignore.

Atlantic editor William Whitworth told

The Post’s media critic, Howard Kurtz, that

his magazine’s statistics were ‘‘unfortunate’’

and ‘‘embarrassing.’’ He went on to describe

the publication’s open-door policy, its desire

to have black journalists and his bafflement

that so few have applied. Whitworth at least

answered Kurtz’s queries, as some others did

not. Still I found myself wondering what sort

of shot the magazine might have taken at,

say, an insurance company or police department that offered a similar defense.

It wouldn’t surprise me to learn that the

management of the Penney’s store in Tupelo

made just such an argument before some

combination of legislation, court decree and

affirmative action forced a change in the

company’s hiring policies.

And it wouldn’t surprise me, sometime

down the road, to hear Whitworth and his

peers boasting of their success in hiring

black writers and without any sacrifice in

quality, either.

Why do opponents of affirmative action

find it so difficult to understand that even

good people need a nudge now and then, or to

comprehend that anti-discrimination statutes are insufficient to overcome deeply entrenched racial attitudes? What black writer—unemployed or working elsewhere—could

be certain that some white guy on one of

these liberal publications has the job she

should have had? How can anybody know?

In some jobs, discrimination is easy to

spot; the 120-word-per-minute typist who

loses out to a competitor whose top speed is

80 wpm has a discrimination claim. But what

of the applicant for an editorial position, or

a legal clerkship, or a securities brokerage?

Anti-discrimination laws won’t do it and

neither will affirmative action—although

these things may help employers to focus on

their behavior.

I keep hoping that the time will come

when nearly all employers will react as