- The Washington Times - Friday, April 18, 2003

In the next month and maybe as soon as within the next week the Bush administration plans to submit to Congress its proposed reauthorization of the federal highway program, called TEA-21. The administration is now trying to decide whether the bill should include a requirement that the government's contractors and subcontractors be chosen not just on the basis of whether they are the low bidders, but also on the basis of race, ethnicity and sex. Yesterday, a number of leaders including Linda Chavez, Clint Bolick, Ward Connerly and all four Republican appointees to the U.S. Commission on Civil Rights sent a letter to President Bush urging him not to include any such discrimination in his bill.
The current highway statute contains such provisions, unfortunately, and preferences like these honeycomb much of the federal government's contracting. But, TEA-21 presents the Bush administration with a perfect opportunity to begin the process of, and set a precedent for, ending the discrimination.
The federal highway preferences have already gone to the Supreme Court three times in the last decade, and the justices have clearly signaled their skepticism about the program's constitutionality. (The government keeps changing the way that preferences are awarded, presenting the Court with a moving target.) The Bush administration gamely defended the program when it was last before the Court in 2001the Court later determined not to decide the case after allbut at that time it had the excuse that it was only doing its job of defending a duly enacted statute, no matter how distasteful. Now, however, the administration is writing the legislation itself, and there is no reason for it to include a provision that is both bad law and bad policy.
There is no way to square the perpetuation of discrimination in the government's contracting with the principles set out earlier this year by President Bush himself and his Justice Department in opposing the University of Michigan's discriminatory admissions program. The administration stressed its strong desire and the constitutional necessity for using racially neutral alternatives to preferential treatment. In the contracting arena, even more than in higher education, there are a variety of ways to achieve "affirmative access" President Bush's phrase without using the racial, ethnic and gender preferences now labeled "affirmative action." Small companies, new companies, companies with owners whose net worth is below a certain level all might be reached out to, without demanding that they pass a skin-color test.
Republicans in the House and Senate overwhelmingly opposed contracting preferences when the highway legislation was reauthorized the last time around. In the Senate, the fight was led by Mitch McConnell, Kentucky Republican. There should be no shortage of congressional allies if the Bush administration does the right thing. If it doesn't if out of political cowardice and unprincipled pandering, President Bush asks Congress to enact legislation that is unconstitutional and that balkanizes our nation at a time when we should be striving for unity he will alienate his base and most Americans, of every race and ethnicity, and both sexes.

Edward Blum and Roger Clegg work at the Center for Equal Opportunity in Sterling, Virginia.

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