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CIVIL RIGHTS AMENDMENT ON NEBRASKA LAW
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 Which provisions of present Nebraskan law stand to be reinforced, supplemented, modified or repealed by this clause?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.
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.
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.
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.
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.
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81-1355. Public policy; equal employment opportunity. 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. (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.
§ 81-1358. Affirmative Action Office; employees.
(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.
(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.
§ 81-1367. Affirmative action; cooperation.
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Text of the Amendment
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