By David Tell, for the Editors
The Weekly Standard, October 2, 1995
If you believe, as we do, that affirmative action is inconsistent with common fairness, and has become irrelevant to the problems of race it was created to address, then perhaps you are disheartened these days. Just a few short months ago there existed a very real prospect of significant reform. But now the issue seems mostly off the table, and the status quo appears more or less secure.
Cheer up. Appearances deceive. If conservatives manage the debate with careful resolve, and if Congressional Republicans go along, this may prove to be a lull before the storm, and nothing more.
Earlier this year, calls for repeal of affirmative action were much the fashion. Pete Wilson endorsed a popular ballot initiative to ban the California state government’s practice of race and gender preferences.
Phil Gramm promised that ending federally administered affirmative action would be his first official act as president. Bob Dole ordered up a Congressional Research Service review of existing executive branch preference programs, implying that he would move against at least some of them before 1997. And then, after minimal debate, Congress actually voted to abolish one such program: a ludicrous FCC tax deferral granted to broadcasters who sold media properties to “minority controlled” enterprises.
With national polls showing broad opposition to governmentally enforced race preferences, and with a number of relevant judicial challenges moving toward Supreme Court review, President Clinton signed the bill that killed the FCC tax break in March. No Democratic president had ever before acquiesced in a restriction of affirmative action. And this Democratic president didn’t even complain about it much. Quite the contrary: He instituted his own review of federal preference programs, and blurted out a vision of acceptable government activity that barely left room for them at all.
“I want to know whether there is some other way we can reach any objective without giving a preference by race or gender in some of the pograms,” Mr. Clinon said at a press conference that month. He was prepared to defend Head Start, college loans, the earned-income tax credit, and empowerment zones — none of them involving affirmative action, of course. But he thought even relatively uncontroversial things like “a minority scholarship program” fell into a “gray area.” And of contracting set-asides for minority-owned businesses — a genuinely controversial and central chunk of federal affirmative action — the president said this: “It’s difficult to draw a conclusion that they even do what they were intended to do in the first place.”
That iced it. The media announced the impending death of a 25-year-long historical era in which the United States government classified its citizens by skin color, gender, and ethnic origin, and dispensed benefits accordingly.
But further evidence to substantiate that prognosis has lately been in short supply. President Clinton, after all, unveiled the results of his administration’s preferences study in late July with a surprisingly strident defense of the idea, ritual caveats about quotas to the contrary notwithstanding. This course reversal has apparently cost Clinton no appreciable (further) decline in popularity. Colin Powell, in brief and general recent comments, has echoed the president’s current line: Quotas are bad, but racism persists and affirmative action remains necessary. Powell’s popularity hasn’t suffered, either.
Over on the (definitely) Republican side of the aisle, we have the following situation. Pete Wilson, the first GOP presidential contender to raise a banner against affirmative action, is going nowhere, his campaign a shambles. Newt Gingrich intends to delay House consideration of any affirmative action rollback until his troops develop a comprehensive agenda to empower the disadvantaged. And in a matter of days, the Senate will likely act to “preserve” federal ethnic and gender preferences. Phil Gramm, you see, acting with too little thought for the ultimate success of his ostensible cause, has attached Bob Dole’s excellent anti-affirmative action legislation to a vital appropriations bill. No time exists for full-scale hearings and political mobilization. So the Dole language will be stripped or neutered, and both men will be needlessly embarrassed.
Expect to hear that affirmative action is alive and well. But understand that what you’ll be hearing is wrong. Affirmative action is still dying. In fact, it’s probably dying faster than it was at the beginning of the year.
On June 12, the Supreme Court issued a decision in Adarand Constructors, Inc. v. Pena that placed federal race preference programs under the ” strictest judicial scrutiny,” scrutiny that will “seldom provide a relevant basis for disparate treatment.” In the future, no such program may be administered absert a specific finding of discrimination that violates Congressional statute or the Constitution. And the remedies provided by that program must be narrowly targeted to identified victims. Generalized disadvantage in the present, historical discrimination in the past, and he interests of “diversity” in the future are no longer sufficient justifications for the federal government to classify and compensate its citizens differently by race.
No major affirmative action program now employed in the executive branch can survive this test.
President Clinton knows this full well. But he has decided to pretend that he doesn’t, for political reasons involving the support of the civil rights establishment and the Democratic votes it presumably represents. To protect itself against the defection of this constituency, the administration now argues, against the clear meaning of Adarand, that “inclusion” might still be a significant justification for existing affirmative action programs, and that programs in which race is just one factor in the conferral of benefits might still pass muster.
Adarand itself involved a program in which race was just one factor; the argument is absurd. But it’s an argument that Justice Department lawyers will a pparently make in defense of any affirmative action program subjected to challe nge in federal court. They will offer statistical disparity studies as evidence of systematic nationwide discrimination. That would be the “finding” used to ju stify the Small Business Administration’s section 8(a) contracting set-aside, f or example. But even then, it’s hard to see how the High Court could accept as “narrowly targeted” affirmative action remedies that usually apply to more than half the nation’s population.
So the best the president can hope for is that lengthy, proliferating litigation delays judicial resolution of federal affirmative action be, fond the 1996 election (or until he can appoint another justice to the Court). And he’ll get away with that, too, unless Congress preempts the courts and forces a debate on legislative proposals that would kill some preference programs early.
Which is where Senator Dole’s legislation, the “Equal Opportunity Act of 1995,” comes in. Dole’s bill, and an identical House measure sponsored by Constitution Subcommittee chairman Charles Canady, would prohibit the federal government — in any decision involving employment or contracting — from granting a preference to any individual or group, in whole or part, on even partial grounds of “race, color, national origin, or sex.” The bill would leave unchanged programs that merely expand recruitment and financial opportunity. It would not affect voluntary affirmative action programs adopted by colleges and universities that receive federal aid. And it would not touch the preference plans of private employers at all, on the perfectly sensible assumption that ethnic and gender classifications imposed by the state are a clear priority for prohibition.
In this very public debate, which we hope Republicans will highlight both in Congress and the presidential campaign, Mr. Clinton cannot like his chances.
The president will be forced to argue that affirmative action programs, as conducted by the federal government, do not do what we know they do. And — at the same time — that they should not be prevented from doing it.
The administration’s July affirmative action review endorsed elimination of any affirmative action program that creates a “quota,” preference for the “unqualified,” or “reverse discrimination” — along with any program whose “equal opportunity purposes have been achieved.” These terms are essentially meaningless, intended to suggest a universe of affirmative action in which the needy are granted a helping hand and nobody ever gets hurt. If one of the myriad preference programs that infect the federal bureaucracy should fall outside the frame of this happy picture, why, the president promises to get rid of it pronto. Just a few weeks ago in California, for instance, he claimed to have “already abolished one I thought was excessive.”
He meant the FCC tax deferral that Congress forced him to swallow in March. And he was lying. His own report on affirmative action, released six weeks $ Ibefore his trip to California, specifically defends that tax break, and mourns its loss. In fact, the report fails to identify a single existing affirmative action program that has either outlived its usefulness or functions in violation of the president’s announced “fairness” standards. For the most part, in other words, everything’s fine. Mr. Clinton hopes we will all go back to sleep.
If we don’t, he has a problem, a contradiction even so accomplished a talker as Bill Clinton can’t finesse. If a serious debate over affirmative action takes place next year, he will have to argue that these programs have $ Isucceeded. And there he will get tripped up. If affirmative action is a success in its particulars, it must mean that certain American citizens have won jobs or contracts that they otherwise would not. “Successful” affirmative action involves the advancement of the less qualified over the more qualified – – simply on the basis of biology and inheritance. Which is something most Americans will not abide.
Who will win this fight next year? As a legislative matter, prospects for broad-scale reform on the Dole model are probably limited. There are but 54 Republicans in the Senate, and Mr. Dole’s legislation, in pure form at least, will surely require 60 votes to overcome a Democratic filibuster. But the debate itself will hasten affirmative action’s demise. It will lower the odds for Mr. Clinton’s reelection — and thus for a Supreme Court more hospitable to the status quo. It will improve the odds for a more conservative, Republican Congress, one in which 60 votes are within closer reach. And it may help elect a Republican president, who might sweep away a good deal of affirmative action with a single stroke of the pen. ”
Given Republican courage and persistence, then, one way or the other, sooner or later, federally enforced racial, ethnic, and gender preferences are probably doomed.