- The Washington Times - Tuesday, April 3, 2001

Three explosive minority preference cases making their way through the federal judiciary now confront President George W. Bush eyeball-to-eyeball. They will test his backbone as nothing else has, including his first inning flurry of environmental and labor about-faces from President William Jefferson Clintons last-minute enthusiasms.

Two of the decisions upheld the employment of skin color preference inadmissions to the University of Michigan and in federal government contracting, respectively. The former case, decided by United States District Judge Patrick A. Duggan, is slated for appeal to the U.S. 6th Circuit Court of Appeals. The latter, decided by a unanimous three-judge panel of the U.S. 10th Circuit Court of Appeals, Adarand Constructors vs. Slater, is currently under review by the United States Supreme Court. The third decision issued last Tuesday by United States District Judge Bernard A. Friedman, however, held unconstitutional skin color preferences in admissions to Michigan law school, a ruling the school plans to appeal to the U.S. 6th Circuit Court of Appeals.

President Bush´s soul-testing options are several. He can instruct the United States as amicus curiae (i.e., friend of the court) in the Michigan admissions appeals to inveigh against the constitutionality of racial preference for the sake of racial preference. That standard would still permit preferences for individuals who have been victimized by past discrimination, and for those raised in circumstances of disadvantage, such as illegitimacy, poverty or parental neglect or abuse. To oppose skin color as an earmark of legal privilege goes hand in glove with a colorblind government advantage for the many whose childhoods have been grim and unenviable.

President Bush´s father lent the prestige of the United States against non-victim racial preferences as amicus curiae in the Taxman case in the U.S. 3rd Circuit Court of Appeals (which ultimately settled before a final ruling). President Clinton, however, ordered a litigating U-turn that saluted their constitutionality when he arrived at the White House when the case was still pending. Direct presidential involvement in wrenching cases are not dubious aberrations. President Jimmy Carter overrode the view of his solicitor general in the landmark Bakke case in the Supreme Court to champion racial quotas in state medical schools or otherwise.

President Bush thus cannot play spectator to the Michigan appeals without walking away from his campaign and Texas gubernatorial commitment to disturbing colorblind justice only when proven racial discrimination is afoot. And the issue of racial preference is so fundamental to what America stands for and should inspire that the president cannot opt for silence without abdicating his moral leadership.

In Adarand Constructors, the court of appeals sustained regulations issued by President Clinton´s Transportation Department that offered bounties to prime contractors who subcontracted with racial or ethnic minority business enterprises. Nothing in the pertinent federal contracting statutes, however, required such a race-based and ethnic-based monetary advantage. Indeed, the plain statutory language declares that contracting bounties should be confined to "individuals … who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities." In other words, non-victims of proven discrimination should be ineligible. The statutes also make eligible for bounties "individuals whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same business area [who have not suffered past discrimination]." Again, the statutory language pivots the subcontracting advantage on proof that the minority business enterprise in question has been saddled with discrimination in the capital and credit markets, which would also be illegal and entitle the enterprises to handsome damages under a host of federal civil rights laws.

Mr. Bush could moot the Adarand litigation by instructing the transportation secretary to replace Mr. Clinton´s omnibus preference regulations with a colorblind standard that stands aside only for proven victims of contracting or companion discrimination. That replacement would honor both the 1995 constitutional teaching of the Supreme Court in an earlier round of Adarand litigation, as well as the sermon of Associate Justice Antonin Scalia in a concurring opinion: "In the eyes of government, we are just one race here. It is American."

A second option is a Bush decision to argue against the constitutionality of Mr. Clinton´s minority preference handiwork, and leave a defense to third parties. The Clinton administration embraced that Supreme Court tactic last year in assailing the constitutionality of a 32-year-old federal statute governing voluntary confessions in federal prosecutions and relegating its defense to other parties in the Dickinson case.

A third option is for Mr. Bush to celebrate Mr. Clinton´s non-victim preferences by adhering to outstanding regulations and mounting a constitutional defense in the Supreme Court.

Mr. Bush´s litigating decisions, however, are not the beginning and the end of his moral leadership responsibilities over race. He should couple them with a clarion call to purge from all state flags an odious symbol of slavery and Jim Crow to blacks and a substantial percentage of white whose ancestors gave that last full measure of devotion: the traitorous banner of the Confederacy. No more temporizing by invoking the shibboleth of states´ rights. What is asked is not a federal prohibition, but a presidential sermon that slavery midwifed the Confederate flag, and that its ugly meaning should be taught, not glorified. To do nothing would be first cousin to President Woodrow Wilson´s White House catering of the racist film, "Birth of a Nation," and offering nodding approval.

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