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THE IMPACT OF THE NEBRASKA
CIVIL RIGHTS AMENDMENT ON NEBRASKA LAW
THE NEBRASKA CIVIL RIGHTS AMENDMENT
In its principal clause, the Amendment declares : “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Which provisions of present Nebraskan law stand to be reinforced, supplemented, modified or repealed by this clause?
[Any reference in the Nebraska Constitution to discrimination (a.k.a. difference, distinction, preference, affirmative action), based on race, sex, color, ethnicity or national origin would have been included on this page. From the Nebraska Statutes, I have sought to include any reference to such discrimination, when public employment, public education, or public contracting is involved. The bold emphases in Section Titles and Headings are in the original text; the bold emphases of passages concerning discrimination, preference or affirmative action are mine. Warning: The legal provisions discussed below are reported as they are written in the Constitution and Statutes of Nebraska, not as they may have been interpreted by the Courts. Curtis Crawford]
THE NEBRASKA CONSTITUTION
Article I of the Nebraska Constitution has 29 Sections, naming individual rights. Nowhere in this Article, or elsewhere in the Constitution, are there any provisions concerning discrimination or preference, based on race, color, national origin or sex.
The Nebraska Civil Rights Amendment, proposed as Section 30 of Article I, would add a new Constitutional right: the right not to be discriminated against, in State-sponsored education, employment or contracting, based on one's race, color, national origin or sex. This right should cancel any existing Nebraska statutory right, in State-sponsored education, employment or contracting, to receive preferential treatment, based on one's race, color, national origin or sex.
THE NEBRASKA STATUTES
Section 23, parts 1735 and 2513, bar discrimination and preference in State employment, based on the racial character of an employee's opinions or affiliations. They offer protections against State discrimination and preference based on the character of a person's racial opinions or affiliations. These protections are consistent with the Amendment, but not reinforced by it.
23-1735. Classified service; discrimination; prohibited.
No person in the classified service or seeking admission thereto shall be appointed, reduced, or removed, or in any way favored or discriminated against because of his political, racial, or religious opinions or affiliations, except for membership in any organization which has advocated or does advocate the overthrow of the government of the United States or this state by force or violence.
23-2513. Employee; no discrimination against because of political, racial, or religious opinions or affiliations; exceptions.
No employee or person desiring to be an employee in an office governed by sections 23-2501 to 23-2516 shall be appointed, demoted or discharged, or in any way favored or discriminated against because of political, racial, or religious opinions or affiliations, but advocating, or being a member of a political party or organization that advocates the overthrow of the government of the United States or of this state by force or violence shall be sufficient reason to discharge an employee.
The following Sections 48-1101, -1104 and -1115, are from Nebraska's employment law. They forbid employment discrimination based on race, color, sex and national origin by employers in Nebraska. Included in this prohibition, of course, is employment by the state. In this respect, the Amendment reinforces the statute. Concerning other employment in Nebraska, the Amendment adds nothing to the statutory prohibitions of discrimination that already exist.
It is the policy of this state to foster the employment of all employable persons in the state on the basis of merit regardless of their race, color, religion, sex, disability, or national origin and to safeguard their right to obtain and hold employment without discrimination because of their race, color, religion, sex, disability, or national origin . Denying equal opportunity for employment because of race, color, religion, sex, disability, or national origin is contrary to the principles of freedom and is a burden on the objectives of the public policy of this state. The policy of this state does not require any person to employ an applicant for employment because of his or her race, color, religion, sex, disability, or national origin, and the policy of this state does not require any employer, employment agency, labor organization, or joint labor-management committee to grant preferential treatment to any individual or to any group because of race, color, religion, sex, disability, or national origin.
It is the public policy of this state that all people in Nebraska, both with and without disabilities, shall have the right and opportunity to enjoy the benefits of living, working, and recreating within this state. It is the intent of the Legislature that state and local governments, Nebraska businesses, Nebraska labor organizations, and Nebraskans with disabilities understand their rights and responsibilities under the law regarding employment discrimination and the prevention of discrimination on the basis of disability.
48-1104. Unlawful employment practice for an employer.
It shall be an unlawful employment practice for an employer:
(1) To fail or refuse to hire, to discharge, or to harass any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, disability, marital status, or national origin; or
(2) To limit, advertise, solicit, segregate, or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect such individual's status as an employee, because of such individual's race, color, religion, sex, disability, marital status, or national origin.
48-1115. Notice of employment; preference or discrimination; race, color, religion, sex, disability, marital status, national origin; unlawful; exception.
It shall be an unlawful employment practice for an employer, labor organization, or employment agency to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency , indicating any preference, limitation, specification, or discrimination based on race, color, religion, sex, disability, marital status, or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification or discrimination based on religion, sex, disability, marital status, or national origin when religion, sex, disability, marital status, or national origin is a bona fide occupational qualification for employment.
Library services are presumably part of the educational function of the State. The following statute prohibiting denial of library services, because of race, sex, color, or national origin, would be reinforced by the Amendment.
51-211. Library board; general powers and duties; discrimination prohibited.
(1) The library board shall have the power to erect, lease, or occupy an appropriate building for the use of such library and to appoint a suitable librarian and assistants, to fix their compensation, and to remove such appointees at pleasure. It shall have the power to establish rules and regulations for the government of such library as may be deemed necessary for its preservation and to maintain its usefulness and efficiency. It shall have the power to fix and impose, by general rules, penalties and forfeitures for trespasses upon or injury to the library grounds, rooms, books, or other property, for failure to return any book, or for violation of any bylaw, rule, or regulation and to fix and impose reasonable fees, not to exceed the library's actual cost, for nonbasic services. The board shall have and exercise such power as may be necessary to carry out the spirit and intent of sections 51-201 to 51-219 in establishing and maintaining a public library and reading room.
(2) The public library shall make its basic services available without charge to all residents of the political subdivision which supplies its tax support.
(3) No service shall be denied to any person because of race, sex, religion, age, color, national origin, ancestry , physical handicap, or marital status.
Service in the National Guard comes under State employment. Section 55-134's prohibition of discrimination based on race, color or sex — with respect to enlistments, advancements and appointments in the Guard — is reinforced by the Amendment.
55-134. National Guard; composition; discrimination prohibited.
The Nebraska National Guard shall consist of the regularly enlisted personnel between the ages of seventeen and sixty years organized, armed, and equipped as hereinafter provided, of warrant officers between the ages of eighteen and sixty-two years, and of commissioned officers between the ages of eighteen and sixty-four years. The number of officers and enlisted personnel of the National Guard shall be determined from time to time and organized so as to at least meet the minimum requirements of the National Guard organizations allotted to this state. No discrimination shall be made in the enlistment of an individual, advancement in grade, or appointment of officers on account of race, color, creed, or sex.
Other Nebraska Statutes provide for affirmative action by the State, based on race, ethnicity or sex. Are these statutes compatible with the Amendment? Indeed, are they in conflict with the flat prohibitions of discrimination in the statutes above?
The Amendment, though not mentioning affirmative action, is widely believed to undo it with regard to State employment, education and contracting. The statutes below require affirmative action, but do not define it. Unless affirmative action is defined, we cannot know whether it would be reinforced, supplemented, modified or repealed by the Amendment.
The definition in Merriam-Webster's Online Dictionary probably expresses what most people include in their idea of affirmative action: “an active effort to improve the employment or educational opportunities of members of minority groups and women.” However, the means chosen for securing these ends may depend on the obstacles that seem to block them. For example, suppose the chief obstacle to greater employment and educational opportunity for minority groups and women to be the existence of widespread discrimination against them based on race or sex. Most of the discriminators would be whites and men; and most of the victims, minorities and women. In that case, a successful ban on all discrimination by employers and educational institutions, based on race, sex, or ethnicity, would be quite advantageous for minorities and women, improving their employment and educational opportunities. Nondiscrimination, as the means, would therefore provide affirmative action (improved employment and educational opportunities for minorities and women), as the end.
As an example, take President Lyndon Johnson's celebrated EXECUTIVE ORDER No. 11246, promulgated in 1965. It required all government contractors to “ take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” In this Order, “affirmative action” was making sure that the race, creed, color, or national origin of the employees of government contractors was completely ignored by their employers.
If, on the other hand, the chief barriers to better employment and educational opportunities for minorities and women are thought to be deficits in skills or motivation due to past discrimination or disadvantage, a possible remedy is special treatment. Supplemental education, extra training, lower standards, special tutoring, additional expenditures will seem justified to create a “level playing field.” Using these means, affirmative action becomes radically different from nondiscrimination based on race or sex.
Sections 81:1355-1368 below prescribe the principles and administration of Nebraska's policy of “equal employment opportunity.” Some clauses seem compatible with a nondiscrimination rule; others imply preferential treatment based on race, sex or ethnicity. The latter, in so far as they govern state-sponsored employment, education and contracting, may collide with the Amendment.
81-1355. Public policy; equal employment opportunity.
It is declared to be in the best interest of the State of Nebraska to insure that historic and any present patterns of sex and racial discrimination are eliminated and that each agency pursue a course of action in all areas of its operation to insure that all citizens are provided with fair and equal opportunities for employment and advancement regardless of race, color, religion, national origin, age, sex, marital status, or physical or mental disability.
Affirmative action shall be taken to insure the implementation of a policy in state government employment which provides equal employment opportunity. Such policy shall apply to:
(1) Hiring, placement, upgrading, transfer, or demotion of employees;
(2) Recruitment, advertising, or solicitation for employment;
(3) Treatment during employment;
(4) Rates of pay or other forms of compensation;
(5) Selection for training;
(6) Layoff, termination, or reinstatement; and
(7) Any other terms or conditions of employment.
In Section 81-1356, paragraph (1), immediately below, the language used to define “equal employment opportunity” could be used exactly, word for word, to forbid discrimination on the specified bases. If so, why not simply call this a guarantee of non-discrimination? What is the additional factor that makes it “equal employment opportunity” instead? In paragraph (2), what are the “barriers to employment and advancement which may discriminate against various groups”? People discriminate; do barriers? Against not only individuals, but “various groups”?
Later, according to the same paragraph, “The ultimate goal is to achieve, at all levels, a state government work force which is representative of the state working population.” What a foolish and criminal goal! It treats state employment as a spoils quota system. It would distribute jobs, not indeed according to workers' political parties, but to their population categories. Why should the people of Nebraska care whether the proportions of men, women, whites, blacks, Hispanics, Asians, Christians, Jews, young, old, single, married, in the state's jobs are bigger or smaller than their proportions in the state? What the people need, and too often fail to get, is that the state's work be done well. What the state badly needs are the best workers it can find and pay for, regardless of their sex, race, ethnicity, religion, marriage status, or age.
At any rate, the goal smells strongly of discrimination and manipulation, on the bases prohibited by the Civil Rights Amendment.
If the Amendment is adopted, it should collide with the State's equal employment opportunity goal in an explosion wondrous to behold! See also, especially, Sections 81-1360 and 81-1368 for the extensive ramifications of the present program.
§ 81-1356. Terms, defined.
As used in sections 81-1355 to 81-1368, unless the context otherwise requires:
(1) Equal employment opportunity shall mean the right of all persons to work and to advance on the basis of merit and ability without regard to race, color, religion, national origin, age, sex, marital status, or physical or mental disability;
(2) Affirmative action shall mean a deliberate and sustained effort to identify and eliminate barriers to employment and advancement which may discriminate against various groups. Particular emphasis shall be focused on racial minorities, women, and the disabled but not to the exclusion of the criteria set forth in subdivision (1) of this section. The ultimate goal is to achieve, at all levels, a state government work force which is representative of the state working population. The composition of the state working population shall be determined annually through reports of the Department of Labor. Such a goal is to be an integral part of every aspect of personnel policy;
(3) Office shall mean the Affirmative Action Office;
(4) Program shall mean the Affirmative Action Program;
(5) Agency shall mean each department, agency, office, board, commission, and committee of the State of Nebraska under the executive authority of the Governor;
(6) Plan shall mean the Affirmative Action Plan prepared by the individual agencies; and
(7) Administrator shall mean the Affirmative Action Administrator.
§ 81-1357. Affirmative Action Office; created.
There is hereby created the Affirmative Action Office which shall be within the personnel division of the Department of Administrative Services. The office shall be under the administrative control of the Director of Personnel.
§ 81-1358. Affirmative Action Office; employees.
The Affirmative Action Office shall consist of such employees as may be necessary to carry out the purposes of sections 81-1355 to 81-1368.
§ 81-1359. Affirmative Action Administrator; selection.
The Affirmative Action Administrator shall be selected by the Director of Personnel.
§ 81-1360. Affirmative Action Administrator; duties; enumerated.
The administrator shall be the head of the office. The administrator shall be given all necessary top management support to insure that there is compliance with Nebraska's program and shall be provided with sufficient staff and budget support to carry out the duties of the office. The administrator shall:
(1) Have the authority and responsibility for coordinating, directing, and implementing the program;
(2) Adopt and promulgate rules and regulations for the implementation of the agencies' plans;
(3) Provide counseling and technical assistance to the agencies in the development of their plans;
(4) Review agency plans and direct modification to insure the effectiveness of the plans and their compliance with the program;
(5) Monitor the progress of agency plans by establishing reporting forms as required by the program;
(6) Review the quarterly reports of the agencies;
(7) Monitor the progress of the program and report quarterly to the Governor;
(8) Make formal recommendations for legislation, when necessary, in order to make changes in the program;
(9) Serve as liaison between the state and federal compliance agencies;
(10) Plan, coordinate, and conduct training in equal employment opportunity, racial awareness, and concerns of women, the disabled, and aging for all segments of the state government work force;
(11) Coordinate the activities of the agency affirmative action individual in each agency;
(12) Investigate any complaints involving unfair treatment, terms and conditions of employment, or perceived acts or policies involving discrimination;
(13) Conduct contract compliance reviews on all vendors, grantees, and contractors who have programs or projects which are funded in whole or in part by state funds;
(14) Coordinate the Disadvantage Business Enterprise and Women Business Enterprise programs which are funded in whole or in part by state or federal funds; and
(15) Submit an annual report to the Governor and Legislature.
§ 81-1361. Agency; plan; submit; update.
Each agency shall submit a plan for that agency to the office and the Affirmative Action Committee for review and shall work with the administrator to insure effectiveness of the plan. Each agency shall annually update its plan based on guidelines developed by the administrator.
§ 81-1362. Agency affirmative action individual; appointed.
The head of each agency with more than ten employees shall appoint at least one individual as agency affirmative action individual for the agency to coordinate equal employment and affirmative action efforts with the office.
§ 81-1363. Affirmative Action Committee; membership.
There shall be an Affirmative Action Committee appointed by the Governor comprised of individuals from the following groups: Ethnic minorities, women, the aging, disabled, and the general public . Three-fourths of those appointed must have a working knowledge of affirmative action with experience gained by employment, education, or general interest. The committee will be composed of no more than ten members.
§ 81-1364. Affirmative Action Committee; duties.
The Affirmative Action Committee shall:
(1) Provide liaison activities with the office with respect to problems and suggestions relative to affirmative action;
(2) Review agency plans for effectiveness at the request of the office or the agency and suggest revisions;
(3) Advise the office and the Governor of the effectiveness and the status of the total program; and
(4) Act as an advisory board for referral to the Governor of noncompliance cases.
§ 81-1365. Affirmative Action Committee; meetings.
Meetings of the Affirmative Action Committee shall be held quarterly on call by the office or upon written request by three or more members of the Affirmative Action Committee or the office.
§ 81-1366. Affirmative Action Committee; members; expenses.
Members of the Affirmative Action Committee will receive reimbursement for expenses in accordance with the provisions of sections 81-1174 to 81-1177.
§ 81-1367. Affirmative action; cooperation.
Each agency shall cooperate with the administrator in the performance of his or her duties. The efforts, activities, and results of all directors, managers, and supervisors shall be used in their work-performance evaluations. Directors, managers, and supervisors shall be obligated to prevent harassment of employees involved in the implementation of plans and those hired through affirmative action efforts.
§ 81-1368. Agency plan; reviewed; noncompliance; effect; report.
Each agency plan shall be reviewed by the office and approved or disapproved after submission. In every case when noncompliance is indicated, efforts shall be made to secure compliance through a corrective action plan. A specific commitment shall be put forth in writing. The commitment shall indicate the precise action to be taken and dates for completion. The time period allowed shall be no longer than thirty calendar days to effect the desired change. If an agency's plan does not comply with the rules and regulations adopted and promulgated by the office or if the agency's goals and timetables are not being met, the office shall meet with the director of the agency to discuss the deficiencies. If an agreement cannot be reached in the informal meeting, the agency's noncompliance shall be reviewed by the Affirmative Action Committee. Agency directors shall take responsibility for all noncompliance within their particular agency. In all cases when such corrective action plan does not resolve the noncompliance, the Affirmative Action Committee shall report such noncompliance to the Governor. Such report shall be in writing and shall be made available to the news media at the same time that it is submitted to the Governor. The Governor shall take appropriate action to resolve the noncompliance elements and issues which were cited by the office and the Affirmative Action Committee.
Text of the Amendment
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