RESOLUTION

WHEREAS, the Civil Rights Act of 1866 was enacted to give former slaves the right to own property, enforce contracts, and give evidence in courts because those rights were not specifically guaranteed in the Thirteenth Amendment; and

WHEREAS, the Civil Rights Act of 1866 was codified in 42 U.S.C. §1981 and is often referred to as Section 1981, the number assigned to it in the codification of federal laws, and during the time of the section's enactment and codification, the Hawaiian Islands were still a sovereign kingdom; and

WHEREAS, Section 1981 provides in part that "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other"; and

WHEREAS, immediately following its passage, Section 1981 underwent nearly a century of desuetude until it began to gain independent significance during the 1960s with the passage of the Civil Rights Act of 1964 that provided equal employment opportunities and made racial discrimination in public places illegal; and

WHEREAS, the Civil Rights Act of 1991 reversed several United States Supreme Court decisions and combined elements of Section 1981 and the employment-related provisions of the Civil Rights Act of 1964; and

WHEREAS, Congress addressed the United States Supreme Court's narrow reading of the phrase "make or enforce contracts" by redefining the phrase to include "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship";

WHEREAS, Congress also clarified that Section 1981 applied to both governmental and private discrimination; and

WHEREAS, when Congress revisited Section 1981 in 1991, its view of the statute's proper scope was presumptively informed by the body of law that developed in the interim; and

WHEREAS, both before and after the passage of the Civil Rights Act of 1991, Congress specifically directed money to the education of Native Hawaiians in 1988 via the Hawkins-Stafford Amendments, formerly codified at 20 U.S.C. §4905(a) and the Native Hawaiian Education Act, 20 U.S.C. §7517(3)(A); and

WHEREAS, Section 1981 has been used as the basis for claims that remedial programs that provide special assistance to Native Hawaiians are discriminatory; and

WHEREAS, there is nothing in the history of Section 1981 to suggest that Congress was concerned with remedial programs that provide special assistance to Native Hawaiians; and

WHEREAS, the use of Section 1981 as the basis for discrimination claims that challenge remedial programs that provide special assistance to Native Hawaiians contravenes other measures Congress has taken to provide remedial measures for Native Hawaiians; now, therefore,

BE IT RESOLVED by the Senate of the Twenty-third Legislature of the State of Hawaii, Regular Session of 2006, the House of Representatives concurring, that the Hawaii Congressional delegation is requested to introduce legislation to ensure that remedial programs that provide special assistance to Native Hawaiians are not subject to challenge under the federal Civil Rights Law; and

BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the members of the Hawaii Congressional delegation.

Report Title:

Federal Civil Rights Law