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Affirmative Opportunity
The president has a second chance to finally stop discrimination.


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These ought to be heady days for values-voting Republicans, but legal and cultural conservatives are waiting with bated breath in one area that has long been important to them: affirmative action.

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The record of the Bush administration during its first term on the issue of preferences according to race, ethnicity, and sex was mixed. The bad ended, but neither was there much positive to report. The government no longer promoted preferences, but it was not very aggressive in attacking them either and, worse, little was done to end the federal government’s own use of affirmative discrimination, especially in its contracting.

There were some exceptions to this do-nothing approach. The most famous were the amicus briefs filed by the Justice Department with the Supreme Court in the University of Michigan admission-preference cases. The administration argued that the university’s discrimination was illegal; even here, however, the position was squishy. The Justice Department had wanted to adopt a relatively clear line that a simple desire for “diversity” could not justify something as divisive and unfair as racial discrimination; the White House watered down the brief. As a result, the briefs punted on this fundamental issue, and instead said only that the University of Michigan’s program went too far (the Supreme Court agreed with respect to the school’s undergraduate admissions, but not with respect to the law school).

Another notable exception to the administration’s non-record in the first term has been the Education Department’s skepticism regarding the legality of university programs that are not simply racially preferential but actually racially exclusive. Some university summer programs, internships, scholarships, and the like have been explicitly limited to those of certain racial or ethnic groups, and absolutely closed to those of the wrong skin color or whose ancestors came from the wrong country. The Education Department has called such programs “extremely difficult to defend,” and most schools have now opened them up to all students, regardless of race.

It raises eyebrows, then, that two of the White House aides who are reported to have been behind the weakening of the Justice Department’s position in the Michigan cases are now slated to head the Justice and Education Departments: Alberto Gonzales and Margaret Spellings, respectively. These two agencies are the most important in the executive branch with respect to the issue of racial preferences, and so the appointments are worrisome.

On the other hand, Gonzales and Spellings are both famous for being loyal soldiers, and one hopes that the White House will give them–and the rest of the administration–clear marching orders in the second term. There is hope that it will.

The Republican-party platform adopted this summer states: “[B]ecause we are opposed to discrimination, we reject preferences, quotas, and set-asides based on skin color, ethnicity, or gender, which perpetuate divisions and can lead people to question the accomplishments of successful minorities and women.” This is exactly the president’s view. During the campaign, he said the same thing using virtually the same words.

It would be worthwhile, then, for senators to question Gonzales and Spellings during their confirmation hearings on these issues, and gain some reassurance that each will enforce the civil-rights laws in the same way for all Americans, regardless of their race, ethnicity, or sex. Conservatives should also insist that the civil-rights officials appointed under Gonzales and Spellings have a strong commitment to color-blind law.

In the second term, the administration should be more aggressive and proactive than it was in the first in implementing the principles that the party and the president have recently endorsed. Here is a list of what needs to be done.

First, the federal government should get its own house in order, especially with respect to contracting. Where it is possible to do so without changing a statute, the administration should end contracting preferences that discriminate on the basis of race, ethnicity, or sex. Where statutes need to be changed, the administration should work with the Republican Congress to change them. A good place to start here would be the federal highway bill, which is up for reauthorization this spring, and about the constitutionality of which the Supreme Court has already expressed skepticism.

With respect to its own hiring and promotion, the federal government–especially the Office of Personnel Management and the Equal Employment Opportunity Commission–should end “affirmative action” policies that push agencies toward bean-counting, goals, and quotas. The EEOC has already taken some positive steps in this regard.

The federal government, through the Labor Department’s Office of Federal Contract Compliance Programs, requires private companies contracting with the federal government to set “goals and timetables”–which inevitably become quotas–on the basis of race, sex, and ethnicity. The regulations promulgated under Executive Order 11,246 are discriminatory on their face (requiring goals for some groups and not others), and the case law establishes that they are clearly unconstitutional; they must be changed.

The Justice Department’s civil-rights division should bring some lawsuits against state and local governments that use illegal contracting preferences, and against some public employers that use illegal hiring and promotion preferences. There is no shortage of such cases; all you have to do is read the newspapers. Unfortunately, local pols have always loved to distribute pork on a racial and ethnic basis; a lawsuit or two by the Justice Department would have a salutary effect on this too-common practice.

The Education Department’s Office for Civil Rights needs to make sure that universities follow the Supreme Court’s command in the Michigan cases that any use of racial and ethnic preference be “narrowly tailored.” That means, for instance, that they are to be used only after race-neutral alternatives have been considered (and, if they have been tried, that they have failed); that racially exclusive programs are never to be used (since, by definition, they do not give the “individualized consideration” the Court demanded); and that race is to be at most a thumb on the scale, not the scale itself. Again, there is no shortage of university practices that would enable OCR to make these points. (OCR should also tell school districts that the Michigan decisions do not allow race-based assignments at the K-12 level.)

Finally, the Equal Employment Opportunity Commission–which is a quasi-independent agency, but the president appoints its chairman and general counsel–ought to target some companies that use illegal employment preferences. Once more, there is no shortage of them–start with Wal-Mart, for instance, which has announced this year that it will tie executive compensation to how well quotas are met–and a couple of high-profile lawsuits would do a world of good.

All this can be done in a way that will build the president’s political capital, not spend it. Preferences are overwhelmingly unpopular with the vast majority of Americans of all races, and the enforcement examples given above do not involve grey areas: They are instances of clearly illegal discrimination. The administration can challenge these practices while it also takes proactive measures to ensure that women and minorities are not discriminated against either, encourages creative recruiting practices that cast a wide net, and promotes economic and educational outreach to disadvantaged individuals of all colors.

Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia.



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