Energy Policy Spurs Affirmative Action Debate
washingtonpost.com
By Dana Milbank
Tuesday, May 20, 2003; Page A17 Earlier this year, when the White House weighed in on the landmark affirmative action case before the Supreme Court, President Bush said he opposed racial quotas but left unanswered the crucial question of whether race can be a factor in government programs.
The administration has now given an answer to that question -- not in a legal brief but in a little-noticed statement on energy policy, of all things. At the end of a four-page official "Statement of Administration Policy" on energy legislation, the administration included two sentences that, in the view of both supporters and opponents of affirmative action, make clear that government cannot consider racial diversity in admissions, grants and the like.
"I've put my photo of Bush back on the wall," said Edward Blum of the American Civil Rights Institute, a leading foe of affirmative action who had begun to wonder about Bush's views since the White House presented its ambiguous brief in the Supreme Court's University of Michigan admissions case.
"They were 50 percent right in the Michigan case, but they are 100 percent right in this SAP. This is what colorblind policy calls for, and it goes beyond Michigan." Sen. John F. Kerry (Mass.), a Democratic presidential candidate and a supporter of affirmative action, was equally excited about the statement, but for other reasons. "It appears that with this SAP the administration is taking the position that even limited efforts to enhance the participation of underrepresented communities in government programs violate the Constitution," he wrote in a letter to Bush last week.
"If that is indeed the administration's position, you seem to be calling into question similar efforts underway at almost all federal agencies." The White House says it has made no change. White House press secretary Ari Fleischer said the latest statement is "perfectly consistent" with Bush's views in the Michigan case. "He supports aggressive efforts to reach out to minorities. . . . The SAP addresses technical issues in the energy bill that deal with set-asides." But if the issues in the energy bill are "technical," the administration has done little to clarify that, to Kerry or anybody else.
The controversy comes from 50 words in a May 8 White House statement: "Several provisions, including sections 931, 987, and 1005, provide certain preferences based on the recipient's race. These provisions should be revised to apply only to the extent consistent with affording equal protection of the laws, as required by the Due Process Clause of the Fifth Amendment to the Constitution."
But even opponents of affirmative action say it's hard to argue that the sections the White House cites are about quotas and set-asides. Section 931, relating to small business, said at least $5 million of grants "shall be made available for grants to Historically Black Colleges and Universities, Tribal Colleges, and Hispanic-Serving Institutions." Section 987 calls for national laboratories to "increase the participation of small business concerns, including socially and economically disadvantaged small business concerns." Section 1005 says science education programs should "give priority to activities that are designed to encourage students from underrepresented groups to pursue scientific and technical careers."
Objections to such provisions seem at odds with Bush's January statement in the Michigan case, when he said, "I strongly support diversity of all kinds, including racial diversity," and he urged schools to pursue diversity. Though Bush aides declined to discuss their objections for quotation, a person who has talked with White House lawyers said the objections are narrow, involving requirements that Hispanic institutions be 25 percent Hispanic and that native Hawaiian organizations be defined exclusively by race. But experts thought the White House suggestion went beyond Bush's earlier objections to affirmative action, which were limited to quotas.
"This is interesting," said Roger Clegg, an affirmative action opponent with the Center for Equal Opportunity. "It's surprising that the administration would object to a bill that has racial preferences in it, even if they weren't quotas." The position is all the more perplexing, Clegg said, because the administration last week proposed federal highway legislation that included similar programs favoring "socially and economically disadvantaged" business owners.
"They're schizophrenic," he said. Blum pronounced himself "just baffled" that the administration, after leaving vague its position on race in the Michigan case and sanctioning affirmative action in the highway legislation, would now condemn fairly minor preferences -- "misdemeanor offenses," Blum called them -- in the energy legislation. "Within a period of four months, they've been half right, all wrong and all right," he said. Verbatim "I don't believe anyone that I know in the administration ever said that Iraq had nuclear weapons."
-- Defense Secretary Donald H. Rumsfeld, May 14. "We believe he has, in fact, reconstituted nuclear weapons."
-- Vice President Cheney, March 16 (aides later said Cheney was referring to Saddam Hussein's nuclear programs, not weapons).
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