Gut-Check Time for Ashcroft
The ghost of Bill Lann Lee continues to haunt our nation’s courts.

By Edward Blum, Clint Bolick, & Roger Clegg. Edward Blum is director of legal affairs at the American Civil Rights Institute. Clint Bolick is director of litigation at the Institute for Justice. Roger Clegg is general counsel at the Center for Equal Opportunity.
May 18, 2001 2:00 p.m.

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.