- The Washington Times - Tuesday, August 21, 2001

This racial preference tale does not paint a profile in presidential courage that inspires like Leutze's "Washington Crossing the Delaware."
On Aug. 10, President Bush, aping his White House predecessor, boldly defended the constitutionality of racial preferences in government contracting before the Supreme Court in Adarand Constructors, Inc. vs. Mineta. A president ordinarily resists involvement in litigation. But exceptions are commonly made for high-voltage political cases. For instance, President Carter's White House instructed the Justice Department to morph from critic to crusader for racial quotas in the watershed case of Regents of the University of California vs. Bakke (1978).
That Mr. Bush was blind-sided by Attorney General John Ashcroft's Adarand Constructors filing on Aug. 10 is thus inconceivable.
Racial preferences were a sharp dividing point between Mr. Bush and Al Gore during the presidential election campaign. Mr. Bush voiced opposition, and pointed to his abandonment of preferences in college and university admissions as governor of Texas in favor of a color-blind standard of applicant excellence. In contrast, Mr. Gore pledged to echo President Clinton's racial preference enthusiasms.
Mr. Bush's change of course after vaulting into the White House, was neither novel nor intrinsically opportunistic. A man who does not grow wiser by the day, Abe Lincoln preached, is a fool. But a public explanation from the president should have been forthcoming, like his televised defense of restricted federal funding of stem-cell research despite a campaign pledge of absolute prohibition.
His Adarand Constructors somersault, however, was executed with the furtiveness of a thief in the night: no presidential address; no big announcement from the White House Press secretary; no White House press conference with Mr. Ashcroft. If Mr. Bush was embarrassed, he had much to be embarrassed about.
His administration sheepishly urged that courts frown on government flip-flops when the White House changes occupants. But litigating U-turns, nevertheless, are made in cases pivotal to a president's agenda. Thus, the Clinton administration in the Taxman litigation then pending before the U.S. 3rd Circuit Court of Appeals swapped the sharp opposition of its predecessor to racial preferences in employment for high-octave serenading. The Bush team also pleaded that Mr. Ashcroft vowed during his confirmation hearing (in response to Democratic detractors) to defend the constitutionality of federal statutes if reasonable arguments could be marshaled.
The pledge standard, however, left ample room for discretion in Adarand Constructors. Attorney General Janet Reno assailed the constitutionality of a federal statute governing the admissibility of confessions in criminal prosecutions before the Supreme Court in Dickerson vs. United States (2000) without incurring Democrat criticism, although Supreme Court precedents marginally favored the federal law. Case law supporting the racial preference at issue in Adarand Constructors is anemic in comparison.
Congress has enlisted the Department of Transportation to skew the distribution of federal highway construction and transit funds based on race or ethnicity through the Disadvantaged Business Enterprise (DBE) program.
It audaciously presumes that every member of a racial or ethnic minority has been victimized by past economic, social or cultural bias; thus, each member of the group enjoys extra credit in competing for construction contracts against white-owned or operated enterprises. To weed out the unworthy DBE, each must notarize a statement of victimization. But what self-interested DBE would refuse? Assembling contrary evidence by the government would be chimerical, especially since even fleeting exposure to racial slurs, the Confederate flag, or a biased neighbor would count as discrimination.
Evidence purporting to justify a presumption of universal discrimination against minorities in contracting falls between the featherweight and bantamweight. Such discrimination has been illegal under federal law for decades, and exposes the bigot to hefty damage claims and payment of attorneys' fees.
Proponents of the presumption, however, presented no evidence that the number of such civil rights lawsuits is worrisome or that the law if ineffectual. Instead, they relied on contracting statistics showing "underutilization" of minority contractors in proportion to their numbers.
As columnist Thomas Sowell has convincingly demonstrated, however, the factors that cause a group to flourish or to flag in any occupation defy statistical charting. Immigrants from India, for instance, are vastly over-represented in the motel industry without any evidence of discrimination against other racial or ethnic groups.
Equally unpersuasive was proof that minority-contracting participation has nosedived in jurisdictions that have abandoned preferences. In Tampa, Fla., for example, discontinuance of a local DBE program caused a tumble in Latino contracts by half and Afro-American contracts by 99 percent. But those plunges are explainable by an inability to compete when artificial racial or ethnic preferences are removed without resort to a presumption of illegal discrimination.
In sum, the ramshackle foundations for the federal statute and regulations raised by Adarand Constructors provided the attorney general with solid footing to challenge their constitutionality as a violation of equal protection. In recent parallel cases, the Supreme Court has refused to bow to congressional findings summoned into being regarding freedom of religion, violence against women or discrimination against the disabled in holding federal "remedial" statutes unconstitutional.
The Adarand Constructors tale is no isolated chapter. The Bush administration has declined to question the federal tax exemption for the racially exclusive millennium scholarship program of the Bill & Melissa Gates Foundation. Ever since Bob Jones University vs. United States (1983), however, the federal code has prohibited a tax exemption for any charity that practices any form of racial discrimination.
And Mr. Ashcroft has said nothing about intervening to support a pair of trailblazing cases assailing racial preferences in admissions at the University of Michigan and its law school, respectively.
President Truman's desk sported the motto, "The buck stops here."
Has Mr. Bush penned a Pontius Pilate-like exception for politically troublesome cases like racial preferences?


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