- The Washington Times - Friday, August 3, 2001

Civil rights groups from across the political spectrum are on tenterhooks awaiting the first big indication of how the Bush administration will address affirmative action during the next four years.
Relief is on the way however, because on Aug. 10, Attorney General John Ashcroft must file a key legal brief detailing the United States' position in a racial preference case headed back to the Supreme Court. If Mr. Ashcroft defends this bald-faced quota program and the speculation is that he will the same administration that Julian Bond of the NAACP pilloried as the Taliban wing of the GOP will have moved to the far left of the vast majority Americans on racial preferences.
At issue is a federal government highway construction program that offers a cash bonus to any prime contractor that awards a fixed percentage of subcontracts to companies owned by certain racial and ethnic groups. Over a decade ago, Randy Pech, a white Colorado businessman and owner of Adarand Constructors, Inc., was denied a federal contract because he was the wrong race, even though his firm submitted the lowest bid. This is the third and probably final time the Supreme Court will examine the program.
The program was adopted because minorities were not receiving a racially proportionate share of all federal construction contracts awarded. This imbalance alone evidenced discrimination according to the quota-obsessed bureaucrats at the Department of Justice.
But did it? When asked if specific acts of discrimination in the contracting industry had been documented by DOJ in two other nearly identical lawsuits, a department lawyer grudgingly answered, "I didn't and I don't don't know of any."
As virtually every lawmaker knows, the federal government cannot implement a race-based preference program to fight discrimination unless it is done as a remedy to those individuals who can prove real, palpable discrimination. Yet that is exactly what the federal government did here it implemented an illegal, blanket racial preference program to combat a problem that may not even exist in the construction arena. In other words, thousands of small business owners are being driven out of business because the government wants to level the playing field to fight a "discrimination" no one can document.
Does this sound fair? In 1998, then-Sen. John Ashcroft didn't think so. During a debate on the floor of the Senate to replace racial set-asides in a huge highway bill with one designed to help all small and emerging businesses regardless of the skin color of the owner Mr. Ashcroft was most emphatic in stating that the awarding of contracts by race is "objectionable as a matter of public policy. The American way is not to award the prize to the one who has this race or that race, or has this disadvantage or that disadvantage by the law. The American system has been to reward achievement and merit. The U.S. Supreme Court has made it clear that a constitutional principle is at stake. My own view is that the best way is to usher in a future of racial reconciliation by ending race-conscious government programs, starting today. You don't end racial discrimination by promoting racial discrimination. The Constitution obligates the Congress to reject unconstitutional legislation whether or not the courts have, as here, already held the legislation unconstitutional."
Nor has Mr. Ashcroft's boss previously defended practices such as these. In 1998, then-Texas gubernatorial candidate George W. Bush correctly answered "no" to a candidate questionnaire in which he was asked if Texas should "classify and favor individuals on the basis of race and ethnicity" when that furthers opportunities in contracting.
Why the likely change of heart from Mr. Bush and Mr. Ashcroft on this issue? Politics. The "diversity" minded Republican Party has convinced itself that opposing affirmative action does very little to turn out its own party's base at the polls, while greatly energizing Democrat-leaning minorities.
If Messrs. Bush and Ashcroft punt the ball in the Adarand case, most likely they will do the same in both of the "racial diversity" university admissions cases working their way up to the Supreme Court. Those cases challenge the admissions policies at the University of Michigan and the University of Georgia. At both schools, better-qualified white students were denied admission in favor of lesser-qualified racial minorities in order to achieve a "diverse" student body.
To make matters even more complicated for Mr. Bush is another question from the same 1998 candidate questionnaire in which he answered "no" when asked, "For the sake of obtaining a diversity of viewpoints and experiences, public educational institutions should be allowed to consider the race and ethnicity of applicants." Legal groups are concerned that this administration will sanction race as an admission criteria to further diversity, as long as it is not the predominate factor, much like the Supreme Court's reasoning in a recent North Carolina racial gerrymandering case.
If the president flips on the issue of racial preferences now in the hope of placating the racial advocacy groups, he risks the same fate that befell his father when he broke his "read my lips no new taxes" pledge in 1991.
But none of this has to happen. The president and his attorney general should stand by their earlier convictions and speak out clearly and forcefully against race-based contracting programs as well as race-based admissions to public universities and colleges, as they did before coming to Washington.
To defend a quota program like this one would be a shortsighted and cynical reversal of principles for the president and attorney general. No amount of appeasement on racial preferences will ever please demagogic critics like the NAACP, but it will succeed in alienating the GOP's base. More importantly, such appeasement may resuscitate fledgling racial preference policies that are destined to further sow the seeds of racial division in an increasingly multi-racial society.
This is the time for the Bush administration to act on its colorblind values, not abandon them.

Edward Blum is director of legal affairs at the American Civil Rights Institute.

Sign up for Daily Newsletters

Copyright © 2019 The Washington Times, LLC. Click here for reprint permission.

The Washington Times Comment Policy

The Washington Times welcomes your comments on Spot.im, our third-party provider. Please read our Comment Policy before commenting.


Click to Read More and View Comments

Click to Hide