- The Washington Times - Wednesday, December 5, 2001

Tomorrow, every college and university president in the country will be tuned in to the arguments being made in federal court in Cincinnati, where an en banc panel of judges will determine the fate of affirmative action. In a civil rights case that has all of the earmarks of being the most important since Brown vs. Board of Education in 1954, the University of Michigan will be defending its use of racial preferences in admissions to its undergraduate and law school programs. Regardless of how the Sixth Circuit rules, most observers believe the U. S. Supreme Court will get this case on appeal sometime this spring. And when it does, odds are the justices will turn to the Bush administration to get their opinion on this question. How the president answers the Supreme Court will likely shape the issue of civil rights for the next decade.
The president won't be able to finesse racial preferences this time the way he did during the campaign. Back then, he argued for a policy he called "affirmative access." Although he had some difficulty explaining it during the debates, the Bush-Cheney campaign web site defined the term essentially as outreach to underserved communities. But that's not what the University of Michigan is defending. It wants to continue using two-tiered admissions criteria one for whites and Asians, and a lower one for blacks and Hispanics in order to create diversity. For all the babble surrounding diversity, in the real world, it is nothing more than a scheme to ensure proportional racial admissions.
The Bush presidential report card is decidedly mixed on the racial preference issue. The administration gets failing marks for letting stand two Clinton-era amicus briefs: the first defended school busing and racial assignments in Charlotte, N.C. The second endorsed the University of Georgia's racial and gender bonus point system for undergraduate admissions. Fortunately, the courts ignored their arguments and ruled for the plaintiffs in each case. The greatest heartbreaker for conservatives, however, was watching Bush-appointed Solicitor General Ted Olsen, one of the nation's most articulate defenders of colorblind jurisprudence, defend a race-based federal highway contracting program before the high court in October. That decision isn't expected until later this winter.
On the other hand, to their credit, this administration seems less tolerant of racial gerrymandering, even when it may help Republicans, and they seem to disfavor the "disparate impact" theory, which has been a major litigation club in dozens of discrimination cases.
But, going forward, it is critically important for the president to instruct the Justice Department to stand with the plaintiffs in the University of Michigan cases for three reasons.
First, there is absolutely no basis in the law to tolerate racial classifications and preferences to promote classroom diversity. In its 1978 decision in the University of California Regents vs. Bakke, Supreme Court Justice Lewis F. Powell Jr. wrote that diversity could be a legitimate goal of a university's admissions policy. Although no other justice concurred with that opinion, it has been used by hundreds of schools in order to maintain complex systems of race-based admissions criteria. Both Mr. Bush and Mr. Olsen know this is nonsense. Mr. Olsen argued successfully in court against this legal theory in Hopwood vs. Texas, and then-Texas Gov. George W. Bush stated on numerous occasions he believed the Hopwood ruling was correct.
Second, the attacks of September 11 have exposed as utter nonsense the philosophical foundations for a multicultural, hyphenated America. Overwhelmingly, assimilated Americans, regardless of race, share the same values and admire the same virtues and traditions that are at the core of the American culture. If the Bush administration endorses University of Michigan's position and argues that a student's skin color plays a significant role in his outlook, personality and life experiences, they are essentially making the same arguments as did Orville Faubus 40 years ago.
All policies that classify people and then treat them differently based on race is simply a form of stereotyping. Achieving diversity in this manner assumes that all minorities are simply interchangeable with one another. Any black student in a class will bring a "black" perspective to the discussion and learning experience it doesn't matter if he attended an impoverished inner-city high school or a chic prep school black skin creates diversity. Is this the kind of thinking the Bush administration wants to promote?
Finally, forgetting for a moment the certain loss of part of the GOP "base," defending race-based affirmative action is bad politics. Many surveys have shown that promoting need-based policies, rather than race-based ones, has the power to unite multiracial political coalitions in this country. Government policies designed to help those truly in need, rather than policies designed to help a specific skin color, will win markedly more public support. But explaining this is hard work and will require spending some political capital. These need-based programs and the change in policies, laws and regulations that must be made if they are implemented does not lend itself to sound bites; it will require a well-conceived and well-executed program to present to the American people.
And time is running out. In six months or so, in all probability, Mr. Bush will be asked by the Supreme Court to weigh in on the matter of race in school admissions. Educating the public, and providing leadership on this momentous issue, will take time.
Better start now.

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

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