- The Washington Times - Monday, February 11, 2002

Last June, the president nominated Gerald Reynolds to be assistant secretary of education for civil rights. It is an important post, one of the more visible in the government. The Senate Committee on Health, Education, Labor and Pensions will soon finally give Mr. Reynolds a hearing. Why has it taken so long?
The committee chairman, Ted Kennedy, has "serious concerns" about the nominee's qualifications, and the Leadership Conference on Civil Rights a coalition of supporters of affirmative action as it is presently practiced vehemently opposes Mr. Reynolds. Julian Bond, chairman of the NAACP, charges Mr. Reynolds with being a "staunch opponent of fairness programs."
Mr. Reynolds, who is black, grew up in the South Bronx and Queens, the son of a retired New York City police officer. He attended public schools, graduated from New York's City University at York College, and received his law degree at Boston University. His 7-year-old daughter attends public school, where his wife is the president of the parents' association.
So far, there is nothing at all incendiary in this resume, including his work as a private litigator, and in regulatory law for Kansas City Power & Light Co. However, during his term as president of the Center for New Black Leadership in Washington, Mr. Reynolds committed the heresy of opposing racial preferences in education. Instead, he has redefined affirmative action as "community-based programs whose primary aims are to replace self-defeating values with improved test scores for students, enhanced employment skills, and economic development of urban communities."
The Office of Civil Rights in the Department of Education deals with affirmative-action policies and programs as well as complaints of racial and gender discrimination. Mr. Reynolds is clearly against discrimination practices and, despite accusations to the contrary, intends to vigorously enforce Title IX of the Education Amendment of 1972 prohibiting sex discrimination in education programs, including sports that are funded by the federal government. "That," he says, "is a straight-out anti-discrimination statute."
So what is so troubling to his accusers? In a long, bristling letter to Mr. Kennedy on Mr. Reynolds, the Leadership Conference on Civil Rights states unequivocally that Mr. Reynolds is vehemently opposed "to all forms of affirmative action."
As I've indicated, that depends on your definition. In 1997, Mr. Reynolds wrote that abolishing "racial preferences and set-asides will return us to affirmative action as it was first proposed in the late 1960s aggressive and affirmative outreach to increase the participation of minorities in education settings and the workspaces."
The Leadership Conference on Civil Rights accuses Mr. Reynolds of denying that "racism is a barrier preventing African Americans from making progress." But in his writings and public appearances, Mr. Reynolds has as Secretary of Education Rod Paige assured Ted Kennedy "never denied and does not deny that racism and discriminatory practices do exist." But he also believes that collective, racial classifications can only be used under "very restrictive circumstances," where the remedy is narrowly tailored.
In its letter to Mr. Kennedy, the Leadership Conference on Civil Rights ends its indictment of the nominee by citing his "criticism of Jesse Jackson in particular."
I ask the senators who will be judging Gerald Reynolds if this requirement of fealty to Mr. Jackson reveals the extremes to which opponents of Mr. Reynolds will go to defend racial preferences. Justice Lewis Powell's swing vote in Regents of the University of California vs. Blake (1978) is continually used by advocates of racial preferences because Justice Powell said that race can be a factor but not the primary factor in college admissions. But in that very decision, Justice Powell also said that nonetheless, there has to be strict scrutiny when using race collectively:
"The individual," Justice Powell wrote, "is entitled to judicial protection against classifications based on his racial or ethnic background, because such distinctions impinge upon personal rights," rather than general extra protection for membership in particular groups. That means all individuals of all races.
When and if there is hearing, in view of the likely party-line vote in the committee Mr. Kennedy chairs, Gerald Reynolds' fate as well as a fair definition of affirmative action will depend on Sen. Jim Jeffords of Vermont, who has stated that "a president is entitled to a nominee of his or her own choosing unless that person is unethical or unqualified." Gerald Reynolds is neither, even if he does not genuflect to Jesse Jackson.

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