THE BUSH ADMINISTRATION V.

AFFIRMATIVE ACTION
JUSTICE DEPARTMENT DRAGS FEET ON UPHOLDING COURT RULING
In a long-awaited ruling on race-conscious remedies in education, the United States Supreme Court in July 2003 upheld college and university affirmative action programs. In a case involving the University of Michigan Law School, the Court approved programs that are narrowly tailored to achieve the goal of racial diversity in the student body.1 This decision was a victory for civil rights proponents at a time when the high Court generally has been hostile to the rights of racial and ethnic minorities. While the principle favoring diversity declared by the Court is clear, many questions arise about how it will be applied in specific circumstances involving colleges and universities and elementary and secondary schools. As in so many areas of law, the devil is in the details. In the past, the United States government, most particularly the Justice Department, has played an important role in the implementation process, by giving guidance on the law and participating in important cases. Here the questions about the Justice Department’s posture are particularly important since the Court’s decision was a repudiation of the legal arguments made by the Department. Given the clear language of Justice O’Connor’s opinion upholding the validity of the admissions policy of the University of Michigan Law School, it would seem that the Administration would have little choice but to approve careful race-conscious policies that give holistic, individual consideration to merit.

1

Gratz v. Bollinger, 02-516 (U.S. 2003); Grutter v. Bollinger, 02-241 (U.S. 2003).

But, judging by the Bush Administration’s record and pronouncements since the July decision, there is real doubt that it will uphold the law.

The Administration’s Negative Record on Affirmative Action
1. The President In his speeches the President himself has at best waffled on affirmative action programs of the sort upheld by the Court in the Michigan case. For example: We must reject the politics of those who want to lump people into groups, those who insist on quotas or double standards. Quotas balkanize America. Group thought provides a convenient excuse for bigotry, a convenient excuse for failure.2 We can have affirmative programs that enhance people’s chance to access the middle class without quotas and without pitting race against race. … I don’t mind measuring, I don’t mind a scorecard. Yes, racism exists. I’m not going to be making policy based on guilt.3 The motivation for such an admissions policy [as the University of Michigan’s] may be very good, but its result is discrimination and that discrimination is wrong.4 If the President’s speeches provide a thin veneer of support for what he has termed “affirmative access,” his actions and those of his Administration have been almost uniformly negative. Most notably there is a hardline group of White House officials charged with vetting and promoting candidates for the federal judgeships. The policy of this group with respect to judicial nominations has been to promote a host of individuals who have records of opposition to civil rights and liberties, including affirmative action remedies. For example, the President’s latest nominee to the Court of Appeals for the District of Columbia Circuit, Judge Janice Rogers Brown of the California Supreme Court, has a long, documented history of opposition to civil rights.5 In the specific area of affirmative action, she listed as one of her ten most important decisions a case in which she repudiated virtually all race-conscious remedies, including those upheld by federal courts under both Title VII of the Civil Rights Act and the U.S. Constitution.6
Speech at Texas A&M University, Apr. 6, 1998, cited at http://www.issues2000.org/Celeb/More_George_W__Bush_Civil_Rights.htm. 3 Time interview, Aug. 1, 2000, cited at http://www.issues2000.org/Celeb/George_W__Bush_Civil_Rights.htm. 4 President’s address to the nation, Jan. 15, 2003, available at http://www.whitehouse.gov/news/releases/2003/01/20030115-7.html. 5 People For the American Way and the NAACP, Loose Cannon: Report in Opposition to the Confirmation of Janice Rogers Brown to the United States Court of Appeals for the DC Circuit, Aug. 28, 2003, available at http://www.pfaw.org/pfaw/dfiles/file_229.pdf. 6 Hi-Voltage Wire Works v. City of San Jose, 12 P.3d 1068 (Cal. 2000).
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2. The Department of Justice Historically, the Department of Justice (DOJ) has been the lead federal agency to interpret civil rights laws with applicability across the federal government. It is DOJ, for example, that should interpret the Michigan decision and advise other departments and agencies of their legal obligations. Thus far, however, DOJ’s record on affirmative action has been deplorable and its silence on the Michigan rulings an abdication of duty. First and foremost, there is the strong anti-civil rights, anti-affirmative action bent of the leaders of the Department of Justice. Both Attorney General John Ashcroft and Solicitor General Theodore Olson came to the issue of affirmative action with a long record of hostility and opposition. Attorney General Ashcroft has been a longtime opponent of affirmative action programs. While in the U.S. Senate, he voted in 1998 to eliminate the Department of Transportation’s Disadvantaged Business Enterprise program that required recipients of federal transportation dollars to have affirmative action programs for women and minorities. He was a co-sponsor of the “Civil Rights Act of 1997,” a bill that would have eliminated affirmative action programs in federal employment and federal contracting. When asked what affirmative action programs he would support, Mr. Ashcroft testified at his confirmation hearing that he supported “affirmative access” programs, citing race neutral programs at public universities in Texas, California, and Florida. Even more influential perhaps is Solicitor General Olson, the United States’ chief spokesperson and lawyer before the Supreme Court. Mr. Olson’s paper trail on affirmative action is as plain as day. When he was asked prior to his confirmation hearings what he had done to carry out canons of the American Bar Association’s Code of Professional Responsibility calling for lawyers to devote time to “serving the disadvantaged,” Mr. Olson pointed to his affiliations with such right-wing organizations as the Center for Individual Rights, the Washington Legal Foundation, and the Federalist Society, all groups dedicated to narrowing or eliminating remedies adopted under federal civil rights laws. More specifically, Mr. Olson cited his pro bono representation since December 1994 of Cheryl Hopwood in her quest to have the University of Texas Law School’s affirmative action plan declared unconstitutional. Mr. Olson succeeded in persuading a panel of the Fifth Circuit that Bakke’s holding that, under appropriate circumstances, race could be considered a plus factor, was no longer good law and did not have to be followed by lower courts. Ordinarily, reversing decisions of the Supreme Court is a prerogative of the Court itself and cannot be accomplished by lower courts. Mr. Olson’s victory led to a precipitous drop in black and Latino students at the University of Texas Law School. In the Michigan case, the briefs signed by Mr. Olson were plain enough in their condemnation of the undergraduate and law school plans as “quotas.” But some right

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wing groups were upset that the government briefs did not offer even sharper and more repeated criticism, and it was rumored that Mr. Olson shared their view. If so, Mr. Olson more than made up for these perceived deficiencies in his oral argument. Referring to the law school plan which did not rely on a point system to reward candidates of color, the Solicitor General termed it “a thinly disguised quota which sets aside a specific portion of each year’s entering class for preferred ethnic groups,” a phrase he liked so much he repeated it later in the argument. Seemingly taken aback by the praise offered by several justices for the amicus brief filed on behalf of the military academies defending race conscious admission policies, Mr. Olson nevertheless said that such programs “may well” be forbidden by the Fourteenth Amendment. Solicitor General Olson’s views have now been repudiated by a majority of the Supreme Court. Justice O’Connor’s opinion for the Court in the law school case recognized and approved as a compelling interest the effort by the universities to help nurture cooperative leadership for our increasingly diverse nation. Furthermore, her opinion found that the law school’s admission program met the constitutional test because it rejected reliance on point systems in favor of a far less mechanical review of candidate applications. Incidentally, the definition also invalidated the Fifth Circuit decision in the Hopwood case, Mr. Olson’s most cherished victory. In the wake of the Michigan decisions, a host of questions regarding affirmative action arise. Given their deep bias against affirmative action and their long records of opposition, will Mr. Olson and his colleagues faithfully carry out the decision? Thus far, there is no indication that they will.

The Duty of the Attorney General
Twice before in history, an incumbent Administration has had to deal with the consequences of major Supreme Court decisions on affirmative action. In 1978, after the Court’s decision in the Bakke case,7 the Department of Health, Education and Welfare took the lead in presenting the Administration’s interpretation of the decision and in delineating the preconditions and permissible bases for affirmative action. The then director of HEW’s Office for Civil Rights, David Tatel (now a federal appellate judge), provided a guide to recipients of federal funds on what policies were permissible under Title VI of the Civil Rights Act of 1964. Eleanor Holmes Norton, who was then chair of the Equal Employment Opportunity Commission (currently a member of Congress representing the District of Columbia and member of the Citizens’ Commission), provided a similar analysis for employers bound by Title VII of the 1964 law. In 1995, soon after the decision in Adarand v. Pena,8 Assistant Attorney General (later Acting Solicitor General) Walter Dellinger issued preliminary policy guidance about permissible and nonpermissible forms of affirmative action in a memorandum to
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Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978). Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).

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general counsels of federal departments and agencies.9 President Clinton then began his “mend it, don’t end it” program, calling for a comprehensive review of affirmative action and appropriate action.10 So far the Bush Administration has had very little to say about the Michigan decision and there is no indication that the Administration has undertaken a review of policy. If the Administration does speak it is questionable whether Messrs. Ashcroft and Olson will be able to put aside their deep-seated prejudices against affirmative action to give due account to the Michigan decisions.

Current Issues and Citizens’ Commission Recommendations for Action
Following are some of the important issues the Administration faces in the wake of the Michigan decision: 1. Are Race-Conscious Diversity Policies Permissible in Public Elementary and Secondary Schools? Thirty years ago, in its landmark Swann decision, the Supreme Court said that it was within the discretionary powers of school districts to decide that in order “to prepare students to live in pluralistic society each school should have a prescribed ratio of negro to white students reflecting the proportion for the districts as a whole.” 11 In the 1970s and 1980s, federal courts routinely rejected challenges by white parents to voluntary desegregation policies. Moreover, many school districts have acted in reliance on the Swann decision and federal policy to craft programs and policies (e.g., magnet schools, student transfers) to ameliorate racial isolation in elementary and secondary schools. In the last few years, however, some lower courts have upheld challenges to these voluntary desegregation policies, arguing that race consciousness in any form violates the Constitution. The Clinton Administration’s Justice Department entered several cases in support of the school districts’ diversity policies, and in a number of cases the districts’ plans have survived the assault. Indeed, in June a federal district judge issued a comprehensive opinion upholding the diversity policies of the Lynn, Massachusetts school district, in which the Clinton Administration had participated as an “interested party.” In issuing the ruling Judge Gertner said: To say that school officials in the K-12 grades, acting in good faith, cannot take steps to remedy the extraordinary problems of de facto segregation and promote multiracial learning, is to go further than ever before to disappoint the promise of
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Walter Dellinger, Memorandum to General Counsels Re: Adarand, June 28, 1995, available at http://clinton2.nara.gov/WH/EOP/OP/html/aa/ap-b.html. 10 Speech by President Bill Clinton, July 19, 1995, available at http://www.washingtonpost.com/wpsrv/politics/special/affirm/docs/clintonspeech.htm. 11 Board of Education v. Swann, 402 U.S. 43 (1971).

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Brown. It is to admit that in 2003, resegregation of the schools is a tolerable result, as if the only problems Brown addressed were bad people and not bad impacts. Nothing in the case law requires that result.12 But the Bush Administration’s Civil Rights Division, under Mr. Ashcroft, has put diversity on the shelf in these K-12 cases. It has not advised districts whether it still considers such plans to be legally permissible. The Michigan decision’s holding that diversity is a compelling interest at the university level would certainly apply with equal or greater vigor to most policies adopted for elementary and secondary schools. Will the Bush Justice Department reactivate participation in these cases? If so, will it be on the right side? Citizens’ Commission recommendation: The Justice Department should affirm that diversity in K-12 classrooms is as compelling and legitimate a government interest as is diversity at the postsecondary levels. DOJ should resume the Clinton Administration practice of siding with school districts seeking to defend against challenges to voluntary desegregation and diversity plans. The Department should also convene gatherings of social scientists and lawyers to continue research and discussion begun during the Clinton Administration concerning the benefits of diversity. Working with DOJ, the Secretary of Education should issue guidance and/or public statements to a wide audience of parents, students, educators, and government officials – including those working in its own Office for Civil Rights – affirming the legitimacy of voluntary K-12 desegregation and diversity plans. 2. Will the Bush Administration Retain Race-Conscious Military Programs? In the oral argument in the Michigan cases, Solicitor General Olson, as noted, cast doubt on the validity of diversity policies being implemented by various branches and segments of the military. His statements run counter to Justice O’Connor’s opinion, which all but endorses the amicus brief of military leaders, stating the military, “must train and educate a highly qualified, racially diverse officer corps in a racially diverse setting.” As Appendix A illustrates, the Department of Defense and the military branches have a host of regulations designed to increase the participation of persons of color in the military. The service academies set specific goals for the admission of blacks and Hispanics. Several report success in increasing minority participation. Citizens’ Commission recommendation: There is an overwhelming consensus in support of the military’s affirmative action policies. The Bush Administration should issue a public statement removing any doubt created by Solicitor General Olson’s remarks before the Supreme Court.
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Comfort v. Lynn School Committee, 263 F.Supp.2d 209 (Mass. 2003).

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3. Will the Bush Administration Give in to Right-Wing Attacks on Scholarship and Internship Programs? Many programs have been established, both by federal agencies and by educational institutions, some of them government-supported, to provide preparation and financial support to young people of color who have had limited access to higher education. In the main these programs have been designed to redress the impact of discrimination in both education and in employment and seek to remedy the persistent underrepresentation of minorities that has resulted. They also take into account the reality that many private scholarship programs favor white ethnic groups. Recently, two anti-affirmative action groups – the American Civil Rights Institute and the Center for Equal Opportunity – sent letters to several colleges and universities, calling upon them to abandon scholarship and other programs that are race-specific. The groups’ letters claim that such programs violate Title VI of the Civil Rights Act of 1964 prohibiting racial discrimination in the use of federal funds and warn that they will file administrative complaints with the Department of Education’s Office for Civil Rights unless the colleges abandon the programs. Among the colleges and universities approached have been Harvard, Ohio State, the University of Virginia, Iowa State, Virginia Tech, Cornell, Indiana, Carnegie-Mellon, and St. Louis Universities. In March 2003, the Chronicle of Higher Education reported that the Office for Civil Rights had “already prodded one college, the Massachusetts Institute of Technology, into changing the admissions polices for two summer programs, and signaled last week that other race-exclusive programs will have difficulty passing its legal muster.”13 An Education Department spokesman issued a prepared statement saying that “generally, programs that use race or national origin as sole eligibility criteria are extremely difficult to defend under the legal standards being applied by the Office for Civil Rights.”14 The statement appears disingenuous because no scholarship program uses race or national origin as “sole eligibility criteria” and no specific legal standards are cited by the Department’s spokesperson. What impact the Michigan decision will have on scholarship-type programs is not yet clear. While the Court’s decision calls for the use of race as one factor in a “holistic” review of applications, there are factors that make race-specific scholarships different from admissions applications. As civil rights experts point out, scholarships, unlike admissions decisions, are far more limited in their impact on other parties. Financial resources for such aid are available from a variety of sources. Indeed programs targeting aid to minorities are often designed to make up for a paucity of such resources when compared to aid programs
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Peter Schmidt, Excluding Some Races from Programs? Expect a Letter From a Lawyer, Chronicle of Higher Education, 22, Mar. 7, 2003. 14 Id.

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sponsored for other groups. In contrast, decisions to admit or reject an application for admission are complete and absolute. Accordingly, the Supreme Court’s guidance about admissions in the Michigan cases does not dictate a particular result about race-specific scholarship or internship programs. So far, most universities appear not to have retreated. Indeed, Virginia Tech’s Board in April voted to rescind a ban on race-specific policies after students objected. The University of North Carolina, for example, explicitly applauded the Supreme Court’s decision and reaffirmed its commitment to diversity (including financial assistance to minority students) on its website.15 Whether the bullying tactics of anti-affirmative groups will have a major impact on university policies remains to be seen. Moreover, the Departments of Justice and Education have been notably silent on the impact of the Michigan cases on higher education policies. In addition, it is still unclear what position Education’s Office for Civil Rights will take in its handling of complaints and investigations. Citizens’ Commission recommendation: Following the practice of prior Administrations, the Bush Administration’s Departments of Justice and Education should prepare guidance, based on the recent Supreme Court decisions and other settled federal law, on permissible and impermissible forms of affirmative action – not only in admissions, but also covering scholarships and other financial aid, and other areas of concern to the education community. The guidance should be placed on the Departments’ websites and disseminated widely to school districts, colleges and universities, state education agencies, the media, and the public. Forms of the guidance should be made accessible to historically disadvantaged groups. This would include, e.g., translations into Spanish and other languages, and dissemination in forms that would make the content accessible to persons with disabilities. 4. Other Federal Affirmative Action and Procurement Programs Government affirmative action programs are extensive and are not limited to education and the military. Both Congress and federal agencies such as the National Institutes of Health, the National Science Foundation and the Department of Education have sought through various programs to increase minority participation in the health professions and in science, mathematics and engineering. Some of the programs focus on economically disadvantaged persons, but others are specific in seeking candidates of color. A sample of such programs appears in Appendix B. In addition, the Administration oversees numerous federal contracting and procurement programs enacted by Congress to redress discrimination against businesses owned by women and minorities. In 2001 the Justice Department filed a brief in the Supreme Court in which it defended the legality of the Department of Transportation’s

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Website of the University of North Carolina, http://www.admissions.unc.edu/diversity/diversityhome.htm, last viewed on Dec. 4, 2003.

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Disadvantaged Business Enterprise program.16 It remains to be seen, however, whether the Administration will review or modify its approach to these programs in the wake of the Supreme Court’s decisions in the Michigan cases. Citizens’ Commission recommendation: The Administration should issue a statement affirming its support for programs and policies, across all federal agencies, that seek to redress the underrepresentation of minorities and persons from economically disadvantaged backgrounds in various professions, including health, engineering and the sciences.

The State of Play: A Bush Forked-Tongue Strategy
Soon after the Michigan cases were decided by the Supreme Court, right-wing organizations, including the Center for Equal Opportunity and the Institute of Justice, lashed out at the Bush Administration for not being zealous enough in its attack on affirmative action. The Right’s particular target was Alberto Gonzales, the President’s Counsel. The Administration and Secretary Rod Paige issued tepid endorsements of the Court decision and Gonzales gave a speech to the National Association of Latino Elected and Appointed Officials approving the decision. In that speech on June 27, Gonzales said, “now that the Court has spoken, the Administration will continue to actively promote diversity and opportunity in higher education in every way that the law permits.”17 Yet in a July 10 interview on National Public Radio, Education Secretary Rod Paige said that the Administration would push hard for race-neutral remedies including the Texas percentage plan (for admission to the University of Texas) that is premised on continuing racial segregation in high schools. This was a program that the Administration pushed hard in its Michigan briefs that was given short shrift by the Court. Thus it appears the Administration is pursuing a forked-tongue strategy. Gonzales and other Administration figures will say nice words about affirmative action in an effort to appeal to Latino voters in the 2004 election. Meanwhile, right-wing extremists associated with groups such as the Federalist Society are embedded in key positions in the Administration and are likely to continue to work against affirmative action remedies. These include Brian Jones, General Counsel, and Gerald Reynolds, now Deputy Associate Attorney General. 18 The latest addition is R. Alexander Acosta, recently named to be Assistant Attorney General for Civil Rights at the Department of Justice. Acosta, like Jones and Reynolds, has a long record of opposing effective civil rights

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Brief for the Respondents, Adarand Constructors v. Mineta (No. 00-730) (Aug. 2001). John M. Broder, Administration Lawyer Lauds Affirmative Action Ruling, New York Times, A10, June 28, 2003. 18 Reynolds could not secure confirmation as Assistant Secretary for Civil Rights at the Department of Education, was given a recess appointment by President Bush and then moved to Justice as his Education appointment was about to expire.

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remedies including affirmative action, and advised his predecessor, Ralph Boyd, in the dismantling of Title VII and fair housing enforcement programs. Pursuing Justice is a new project initiated by the Citizens’ Commission on Civil Rights to monitor the civil rights policies and actions of the U.S. Department of Justice. While continuing its investigation of the Department’s affirmative action record, the project will also examine whether the Department, under Attorney General Ashcroft, is trying to make it more difficult than before to prove civil rights violations and whether it is providing favored treatment to Republican campaign contributors. The Citizens’ Commission is grateful to the Open Society Institute and the Ford Foundation for their support. Next issue: A look at the Department’s position on proving discrimination in housing and employment; follow up on affirmative action. Pursuing Justice is available on the web at www.cccr.org.

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