Now is not the time for the Bush administration to get weak-kneed on affirmative action. Not only did George Bush campaign against racial preferences; they are bad policy and are destructive of racial relations.
Recently, USA Today reported that the Bush administration has decided to follow the Clinton administration in defending a racially preferential contracting program in the never-ending case of Adarand Constructors, Inc. v. Mineta. This is particularly troublesome for conservatives who have been counting on President Bush and Attorney General Ashcroft to reverse the Clinton policy.
Don't forget how passionately Republicans have argued against race-based preferences. Remember their adamant opposition to Clinton's appointment of Bill Lann Lee to head the Justice Department's Civil Rights Division? Their primary reason was his refusal to assure them he would follow the law on race-based preferences.
What is that law? Well, the Supreme Court (in an earlier generation of the Adarand case) ruled that any attempt by the federal government to accord minorities preferences in hiring would be subject to "strict scrutiny." Strict scrutiny is an extremely exacting standard, and it all but outlaws reverse discrimination by the federal government.
Under the strict scrutiny test, the government cannot favor certain racial groups in its hiring practices without demonstrating that it has a compelling interest to do so. How does it demonstrate its compelling interest? By proving, as a matter of fact, that the government has discriminated against those racial groups in its hiring practices and that the only way to remedy that discrimination is to discriminate against other racial groups.
In the Adarand case the Court will consider the constitutionality of a federal government's payment of cash bonuses to firms that accept bids from companies owned by members of certain minority groups. The plaintiff in the case was denied the highway construction contract despite having submitted the lowest bid because the government paid the prime contractor a bonus to accept a higher bid from a minority company.
For the government's practice to be upheld in Adarand, the Justice Department will have to convince the court that the government is trying to remedy actual discrimination with its practice of reverse discrimination. But here's the rub: Apparently, the government has no proof of actual discrimination.
To support its practice of giving cash bonus awards, according to Roger Clegg for National Review Online, the government has been relying on a 1996 report entitled "The Compelling Interest for Affirmative Action in Federal Procurement: A Preliminary Survey." But the report is full of fluff, not evidence. Even a Justice Department lawyer conceded in a deposition that the report is not a scholarly evaluation of whether racial discrimination occurred, but "pure advocacy."
The Justice Department's brief in Adarand is due tomorrow. Will Bush-Ashcroft follow the Clinton-Reno path of attempting to justify these illegal discriminatory practices as USA Today claims they will? Or will they throw in the towel and admit on the record that they have no proof of actual discrimination? Stated another way, will it make any difference in this case which party is in power, or will the government continue to operate under its own bureaucratic inertia?
Regardless of any political fallout, the Bush administration has an obligation to end the government's practice of imposing racial preferences in hiring. Awarding contracts on the basis of race is, as stated by then Sen. Ashcroft, "objectionable as a matter of public policy."
Ward Connerly, chairman of the American Civil Rights Institute has warned the Bush administration in sober terms not to reverse its pro-equality assurances "made during and prior to the 2000 campaign." Otherwise, said Connerly, "President Bush deserves the disappointment and anger of mainstream Americans for this far-left lurch towards racialist politics. It is neither compassionate nor conservative to coddle preferences."
Connerly is exactly right. There is nothing compassionate about paternalistic racial preferences. Granting advantages to racial groups insultingly harms those groups in the long run by reducing their need to compete on the merits. And, it demoralizes the racial groups who are victimized. Racial tensions across the board are exacerbated.
Republicans are famous for talking a good game when they're out of power. The true test of their leadership is how they govern when they are in power. The Bush administration must avoid the temptation to pander to minorities, and show that it is a true champion of civil rights and equal opportunity for all Americans.