10/18/00 2:55 p.m.
A Clear Choice on Affirmative Action
Two distinct visions.

By Roger Clegg, general counsel of the Center for Equal Opportunity

here were a number of barbed exchanges in last night's third presidential debate — these two guys really don't like each other — but perhaps none with as much acrimony per minute as the one in response to a question on "affirmative action."

The question was directed to Governor Bush and was quite vague, about the importance of "diversity" and "inclusiveness" and asking about the "role of affirmative action" in his administration.

Bush's response began with the reassurance — it registering with him that the questioner was a black woman — that as governor of Texas he had "brought in people from all over" to work for him, that he "wants a diverse country" (he doesn't have much choice), that he wants our institutions to reflect this diversity.

Then, however, he quickly made clear that he rejects "quotas." They "pit one against another," he said, and are "bad for America." Instead, as governor he has favored "affirmative access." The examples he gave were in higher education and state contracting. In the former, he said that greater diversity was achieved by legislation he helped pass that guaranteed college slots to students who graduated in the top 10 percent of their high-school classes. For achieving diversity in the latter, he said that he didn't use quotas, but instead an emphasis on awarding contracts to smaller companies.

He then finished up with his support for "equal opportunity" and "the opportunity to recognize [one's] potential" through, again, "affirmative access."

Vice President Gore replied — "pounced" was how the Washington Post put it this morning — by saying: "I don't know what affirmative access is; I do know what affirmative action means. I know the governor's against it and I know that I'm for it." He said that Bush was also against the federal hate-crimes statute that he (Gore) favored, an odd but interesting equation of this statute with preferential treatment. He then bragged that the Clinton and Gore have fully embraced diversity — an understatement for this hire-by-the-numbers administration — as had the late governor of Missouri (killed the night before in a plane crash), a maudlin but not doubt accurate point.

Gore finished up by saying that he, too, was against quotas, but that Bush was wrong to bring this into the discussion of affirmative action since they are a "red herring" and "illegal." He pressed Bush on whether he supported affirmative action.

Bush rejoined that he's against affirmative action if that means quotas, and that he was for was he just said he was for. Gore denied that affirmative action includes quotas, and demanded that Bush say whether he would support what the Supreme Court has deemed "constitutional affirmative action."

At that point, Bush turned beseechingly to moderator Jim Lehrer, indicating that he was ready to move on to another question. Gore gleefully announced that this move "spoke volumes"; Bush, clearly irritated, said that all this proved was that he was tired of Gore breaking the ground rules of the debate (here, against the candidates' questioning each other).

Bush's responses were not perfect. Attacking "quotas" rather than "preferences" allows a sophist like Gore to do what he did: use a very narrow definition of quotas and then claim to be against them, too. Bush is also wrong to endorse his state's adoption of the 10 percent plan, since it was adopted mainly as a backdoor way to achieve a particular racial and ethnic mix in the state's public colleges, which is objectionable for the same reason that overt quotas are objectionable.

But it is easy to miss the forest for the trees in this telling exchange. On the fundamental points, Bush is absolutely right and Gore is absolutely wrong.

Bush understands that the phrase "affirmative action" is ambiguous. It certainly can mean what he calls — he has used the phrase before — "affirmative access." Indeed, the term's original, early 1960s meaning was aggressive, proactive discrimination, casting a wide recruitment net, and making clear to all applicants that they would be given an equal opportunity. But Bush knows that affirmative action now can — and usually does — also include preferential treatment, which translates to hard or soft quotas (euphemistically called "goals and timetables").

And so Bush was quite right to make clear in his answer that he did not support this kind of affirmative action. Gore's accusation that quotas are a "red herring" is simply false, and he must know it. Preferential treatment is the only kind of affirmative action that anyone objects to.

It was also odd for Gore to bring the Supreme Court's decisions into this discussion. In the first place, the fact that the Court allows some affirmative action doesn't mean that it allows all affirmative action. And even if the Court has allowed some use of preferences, that doesn't mean that they are good policy. The law may allow something that is still objectionable, and the question put to the candidates was what policy they supported, not what the limits of the law allow.

There was also great irony in Gore raising the Court's decisions, because it underscores another area in which his administration has demonstrated its contempt for the rule of law. The Court has made clear that racial and ethnic preferences by the government are permissible in only the most extraordinary circumstances — that they are "presumptively invalid." Yet the administration has stubbornly persisted in creating and defending such preferences in education, employment, contracting, voting, you name it.

And so this exchange typifies much in the debate. Bush doesn't give the best answer, but it is clear that he has not only the right instincts but a deeper understanding of the issue that his mangled syntax would suggest. Gore is aggressive, slippery, and wrong.