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On the Road Again with the Bush Doctrine By: Edward Blum and Roger Clegg
Center for Equal Opportunity | Tuesday, April 29, 2003

In an address on January 15th from the Roosevelt Room of the White House, President Bush explained to the American people why he opposed the “affirmative action” admissions policies at the University of Michigan. The President explained that the U-M policy was “a quota system that unfairly rewards or penalizes perspective students based solely on their race.” (In this case, twenty extra points were awarded to blacks and Hispanics who apply to the undergraduate program at U-M.) He discussed other, fairer, “innovative” ways to ensure “racial diversity” in colleges other than though quotas and “discrimination,” such as the top-percent plans in use in California, Texas, and Florida.

The next day, the Bush administration submitted a pair of friend-of-the-court briefs to the U.S. Supreme Court in support of the students who were rejected from the university because they were the wrong race. It is noteworthy that, near the end of one of the briefs, there appeared the following legal principle: “The policy’s use of race is not necessary in light of the race-neutral alternatives available.”

Call this the “Bush Doctrine”: Government can’t treat people differently by race to level the playing field until all race-neutral policies have been tried first.

So it will come as a terrible disappointment---and it will be hypocritical in the extreme--- if just a few months later the President abandons the principle of “race-neutrality before racial preferences” and allows the reauthorization of a massive highway construction bill---called “TEA-21”--- to be submitted to Congress with racial, ethnic, and gender preferences as part of the legislation.

Word has leaked out that the administration is now trying to decide whether the bill should include a requirement that the government's highway contractors and subcontractors be chosen not just on the basis of whether they are the low bidders, but also on the basis of race, ethnicity and sex---the exact kind of quotas the President found objectionable at U-M.

These federal highway preferences have already gone to the Supreme Court three times in the last decade, and the justices have clearly signaled their skepticism about the program's constitutionality. Because the original bill was already on the books when President Bush took office, his administration felt compelled to defend the program when it was last before the Supreme Court in 2001. (The Court never decided the case because the government changed part of the program at issue.) Now, however, the administration is writing the legislation itself, and there is no reason for it to include a provision that is both bad law and bad policy.

Recently, a “Who’s Who” of civil rights leaders---including Linda Chavez, Clint Bolick, Ward Connerly and all four Republican appointees to the U.S. Commission on Civil Rights--- sent the President a letter urging him to stick to the racial nondiscrimination guidelines he set out in his U-M briefs. These leaders suggested the President replace the current race-based affirmative action set-asides in the old bill with race-neutral policies designed to help small, new, and emerging businesses in the new reauthorization bill.

This kind of helping hand is exactly what the President’s model of “affirmative access”---his phrase---is supposed to be all about. Rather than propose a contracting preference to someone based on race, ethnicity, or sex, the government can offer a helping hand to all qualified individuals trying to get a business off the ground. This “need-based” affirmative action has already been successfully implemented in dozens of cities around the country.

It is all too obvious that most race-based contracting preferences throughout the nation benefit minorities who need it the least. For the most part, these individuals are generally well educated, financially successful, and truly don’t need or deserve any help from the government.

President Bush should not allow the TEA-21 transportation bill to be submitted to Congress with the very kind of quotas and preferences he found objectionable when they were implemented by the University of Michigan. To do so would weaken the arguments he made in his briefs to the Supreme Court.  And it would reveal to the nation that, when he set out his principles of racial nondiscrimination in those briefs, he didn’t really mean it.

Edward Blum is a senior fellow and Roger Clegg is the general counsel at the Center for Equal Opportunity in Sterling, Virginia.

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