|
 lthough
he never received Senate confirmation as the assistant attorney
general for civil rights at the Department of
Justice, the
ghost of Clinton-era official Bill Lann Lee continues to haunt our
nation's courts.
In an friend-of-the-court
brief written by Lee last year in a case involving racial admissions
preferences at the University of Georgia, the Department of Justice
argued that Jennifer Johnson, Aimee Bogrow, and Molly Ann Beckenhauer
— young women with exceptional grades and exams — were properly
denied admission to the school in order to promote racial "diversity."
Just as with similar cases involving universities in Texas, Washington
state, and Michigan, the University of Georgia awards extra-credit
points to applicants who are members of "underrepresented"
racial groups. Since these women were white, they didn't get the
bonus points and were forced to attend college elsewhere.
The trial judge
ruled that granting or withholding bonus points to individuals based
upon their skin color was unconstitutional. He forbid UGA from considering
race in the future. But Lee's brief, filed on behalf of the United
States, defends UGA's discrimination.
On May 22,
a three-judge panel of the U.S. Court of Appeals for the Eleventh
Circuit Court in Atlanta will hear this case on appeal. Attorney
General John Ashcroft has the opportunity to withdraw the Lee brief
on the grounds that it no longer reflects the position of the United
States government. Our organizations have written to Ashcroft and
asked him to do just that. If Ashcroft doesn't act by May 22, the
policy of awarding racial bonus points to university applicants
will have the tacit endorsement of the Bush administration.
This is not
the first bad amicus brief the new Bush administration has
confronted. This past February in Richmond, the full Fourth Circuit
considered an appeal from the Charlotte-Mecklenburg school district's
policy of busing children away from their neighborhood schools in
order to achieve racial "diversity." The parents of the
children challenging the busing regime asked the recently confirmed
John Ashcroft to withdraw the Clinton-era brief in support of busing,
but the Justice Department refused to act. In a letter to the National
Association of Neighborhood Schools, Ashcroft's DOJ defended its
failure to withdraw the brief on the grounds that the brief had
been filed before an earlier panel and the new en banc panel was
not entertaining new briefs.
This excuse
was not persuasive, since the Department was being asked to withdraw
a brief, not file one. But, in any event, its logic would require
the withdrawal of the Georgia brief. The panel about to convene
to hear arguments this time is the same panel before which the Department
filed its brief.
There is a
great deal at stake in how the Bush administration handles the Georgia
case. Failure to withdraw the Lee brief will signal to the nation's
legal and political communities that the new administration will
not fight for colorblind legal principles or public policies. Whether
the issue is university admissions, public contracting, voting rights,
or government employment, President Bush and his administration
have to take a stand on whether they will support or oppose racial
preferences. There is no middle way.
Each time the
administration allows the government to remain on record as supporting
such discrimination, the practice of classifying people by race
and assigning them unique personalities, backgrounds, and outlooks
because of their skin color will become more deeply ingrained than
ever. How can this administration argue that police racial profiling
— the process of concluding one's skin color is a proxy for likely
criminal activity — is wrong, while at the same time arguing that
universities can make race a proxy for likely classroom activity?
They can't have it both ways: either race tells us something important
about a person or it doesn't.
This isn't
a new issue for Mr. Bush. After all, he was governor of Texas at
the time the highly controversial Hopwood decision was handed
down. In that case, as in the Georgia one, the University of Texas
was accused of having a two-track admissions policy — one for whites
and Asians and another, less competitive one for blacks and Hispanics.
The Hopwood court found that race should never be a factor
used to achieve diversity in college admissions, and then-Governor
Bush stated on numerous occasions he believed the court properly
decided the case.
Even more telling
are his answers to a 1998 candidate questionnaire in which he was
asked: "For the sake of obtaining a diversity of viewpoints
and experiences, public educational institutions should be allowed
to consider the race and ethnicity of applicants." He answered,
"no."
Unlike the
situation with school vouchers or tax brackets, on the preference
issue Bush cannot plead the give-and-take necessary to pass legislation.
Legislative compromise is not at work here. President Bush can't
change his mind on this one.
What America
needs on this issue is political leadership that will unwaveringly
argue that race is a meaningless construct and should be abandoned
as a factor in our public lives. Period. Without this clear articulation,
Americans of every race will remain exasperated over the do's and
don'ts , the when's and when-nots, and how's and how-nots of race
and ethnicity.
President Bush
and Attorney General Ashcroft know this. But they must find the
political courage to act upon their beliefs. Withdrawing the University
of Georgia pro-racial preference brief is a good place to start.
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