Two Bad Bills
Two bad bills on civil-rights issues.

Mr. Clegg is general counsel at the Center for Equal Opportunity.
September 6, 2001 8:55 a.m.

ongress is back, and it will have to deal with two bad bills on civil-rights issues that are making their way through the legislature.

Racial Profiling

The first, S. 989, purports to ban racial profiling. Hearings were held on the bill before the Senate Judiciary Committee's Subcommittee on the Constitution — chaired by the bill's principal sponsor, Russ Feingold (D., Wis.) — on August 1. Senator Feingold is likely to start trying to move the bill now that Congress has returned, probably trying to schedule a mark-up for the bill this month.

Racial profiling is bad policy and probably already illegal under the Constitution — as S. 989 itself recognizes — but that does not mean that the police must stop and arrest individuals in strict proportion to their demographic representation in the general population. The fact is that some groups — males, the young, and, yes, members of some racial and ethnic minorities — commit crimes at higher rates than others, and so it is only logical that they should be stopped and arrested at higher rates, too.

The trouble with S. 989 is that it would push the police toward using quotas in their policies. It does so in two ways. First, it declares in Section 102 (c): "Proof that routine investigatory activities of law enforcement agents in a jurisdiction have had a disparate impact on racial or ethnic minorities shall constitute prima facie evidence of a violation of this title."

So, for instance, if a police department decides to target high-crime areas for aggressive policing, and high-crime areas have a relatively high number of African Americans or Latinos, then its "routine investigatory activities" will have a "disparate impact on racial and ethnic minorities" and the department will have to prove that the policy is not intended to be discriminatory. Proving a negative is never easy, especially before a hostile judge or jury, and the end result will be less effective policing. The real losers will be the law-abiding citizens who live in minority neighborhoods. Some civil-rights bill.

Incidentally, Section 102 (c) is unconstitutional since it creates a prima facie violation for policies that have a disparate impact on "minorities" but not on nonminorities. This is a classic instance of a statute that would "deny … the equal protection of the laws," in violation of the Fourteenth Amendment's text.

The second way that S. 989 will encourage quotas is by dictating that police departments collect racial and ethnic data about their stops and arrests. As discussed in an excellent article by Katherine Kersten in the August 20/27 Weekly Standard, traffic-stop studies — like the ones S. 989 would require — are useless and misleading. Worse, the result will be to push the police toward getting their numbers "right," even if it means stopping or arresting people who aren't really suspects, and letting people go who are. If you are a policeman and you know you have already stopped a couple of African Americans one evening, you are going to hesitate before stopping a third. You would prefer to stop an Asian, just for the sake of balance, even if you have sound reasons for wanting to stop a third African American.

Native Hawaiians

The other bad "civil rights" bill before Congress is docketed as S. 746 in the Senate and H.R. 617 in the House. It provides for special, favored treatment of "Native Hawaiians" among all other racial and ethnic groups in Hawaii (and in the rest of the country, for that matter). It even awards them quasi-sovereign status, giving them the authority to create a "governing entity" and the right to "self-determination and self-governance," as well as allowing them to receive "the transfer of lands, resources, and assets."

"Native Hawaiians" are defined as the "lineal descendants" of the "aboriginal, indigenous, native people" of Hawaii. This is, therefore, clearly a racial classification. Indeed, the Supreme Court declared an identical preference scheme (in the voting context) to be unconstitutional last year in Rice v. Cayetano, reasoning that "Ancestry can be a proxy for race. It is that proxy here." The bill uses a "one-drop" rule: Anyone with any Native Hawaiian blood is deemed a Native Hawaiian.

So why do the sponsors of S. 746/H.R. 617 think they can get away with this blatant attempt to overturn a Supreme Court constitutional decision by simply passing a statute? The theory behind this legislation is that Congress can declare Native Hawaiians to be an Indian tribe, and then the special treatment given to them will no longer be illegally racial. But the problem is that, as a matter of historical fact and social reality, Native Hawaiians aren't an Indian tribe, any more than Mexican Americans and Irish Americans are. And it makes no sense for Congress to want to push an ethnic group into being separate and semi-autonomous the way that Indian tribes have been.

The latest Census numbers also show that, on top of the historical and social differences between Native Hawaiians and American Indians, the former ethnic group is too mixed and too far-flung to be considered a "tribe." The vast majority of Hawaiians with Native Hawaiian blood are of mixed ethnicity. By contrast, the vast majority of those living on Indian reservations consider themselves to be "pure" Indians. On the Navajo Nation Reservation in Arizona, for instance, almost all (99 percent) of the Navajos said they were "tribe alone" versus tribe in combination with any other racial or ethnic group.

The latest Census figures also show that approximately four out of ten individuals that the bill would consider "Native Hawaiians" do not even live in Hawaii. Further, the percentage of them who are considered Native Hawaiians only because of the bill's one-drop rule is likely much higher than for those on the island — yet all of them are awarded privileged status by the bill, too.

S. 756/H.R. 617 is just another racial pander, another attempt to play identity politics, and more encouragement for some Americans to think of themselves as something other than Americans first.

Unfortunately, it has passed out of committee in both houses — bad enough for the Senate, and simply inexcusable in the House. It, and the racial profiling bill, need to be watched closely.