Adarand v. Reynolds
An upside to the Adarand brief.

By John J. Miller & Ramesh Ponnuru
August 13, 2001 3:10 p.m.

ost supporters of color blind public policy are unhappy with a recent brief the Bush administration filed with the Supreme Court. But there may be a silver lining to it.

On Friday, the administration submitted a brief in the Adarand case that asks the Justices to uphold racial preferences in federal transportation contracts. Six years ago, the Court looked skeptically at a set-aside program but allowed the Clinton administration to revise it. The revived version of the program is less offensive--though it continues to treat citizens differently based on their race. For this reason alone, it would have been encouraging to see the Department of Justice reverse its standard practice of defending the constitutionality of all federal programs and ask the Justices to abolish this one. (Of course, this would have raised a difficult question: If the administration thinks the new program is unconstitutional, why not modify it rather than go to court?)

Several news reports indicate that the White House doesn't want too much read into this brief: It may be keeping its powder dry for an even more explosive case on whether racial diversity is a compelling state interest when it comes to university admissions.

The decision not to fight preferences in Adarand also keeps fire away from Gerald Reynolds, Bush's likely nominee for the civil-rights office at the Department of Education. The Left already has demonstrated some willingness to attack Reynolds; a reversal on Adarand would have made him not just a punching bag, but an actual target. The Adarand brief may make Reynolds's confirmation more likely: It shows that high-stakes decisions about racial policy will be made at top levels, and not from the office Reynolds would like to hold.