Fake Right

It took a long time for W. to appear to come out, boldly and unequivocally, for an end to race preferences in college admissions while advocating equal opportunity for all.

He looked good for a minute there -- and then he deliberately dropped the ball. If he were a quarterback, the penalty would be "intentional grounding." And he has dropped the ball on this issue so many times it now it seems legitimate to ask which team he is really on.

W. has had plenty of time to think about the problem. When President Bush was Governor of Texas, the issue was brought forcefully to his attention by a group of prospective law students (including this writer) who sued the University of Texas over its racial preferences program. The Texas program was so drastic that, by the university's admission, it determined almost 20% of every year's entering class -- and over 90% of its minority admittees.

But while W. had to look at race preferences, Texas' unusually fragmented electoral system (in which the state Attorney General is independently elected) allowed him to sit on the sidelines -- and do nothing -- while Democratic Attorney General Dan Morales flip-flopped from defender of race preferences to advocate for race equality.

Unlike Pete Wilson, who forcefully intervened on behalf of a voter initiative that ended race preferences in California, W. could let the issue work itself out without putting his hands on the ball. Bush only mentioned the case in public once. Asked in March of 1996 whether he supported the University of Texas' race preferences scheme then in place, Bush said he approved -- less than a week before the federal Fifth Circuit Court of Appeals ruled the University of Texas race plan unconstitutional.

Despite the quarterback's missteps, other members of the pro-equal rights team (including the Center for Individual Rights that is fighting for the Michigan plaintiffs) advanced the ball, winning the Cheryl Hopwood v. Texas case that outlawed all consideration of race in university admissions in Texas.

In 1998, in response to a questionnaire from a conservative group, Bush's campaign said he opposed quotas, and supported the Hopwood decision -- which he had, by that time, undermined by signing into law a program devised by minority legislators designed to create race preferences by another name -- the infamous "top ten percent plan."

That plan was deliberately designed to maximize black and Mexican-American enrollment. It pretended to stick to high standards of qualification -- "top ten percent," but it achieved its notoriously racial ends only by redefining what the "top ten percent" meant. Before, standardized test scores, which meaningfully compare students at dramatically different quality schools, were an integral part of the inquiry into merit -- into who was really part of the "top ten percent." The new system discarded the meaningful component, and arbitrarily set the poorest ghetto schools on an equal plane with the most exclusive private academies.

The reason was race. The result was massive increases in remedial classes and more failing students than ever before at Texas' universities. The resulting race numbers were high enough to mollify Texas race-hustlers so that they did not excessively criticize W. when he ran for president.

Count that as an interception -- but we must now ask if the quarterback threw the ball deliberately into the hands of the opposition.

And then, in 2000, W. famously endorsed "affirmative access" -- which satisfied no one, but frightened no one, either.

But on Jan. 15, W. went beyond campaign rhetoric, saying "quota systems that use race to include or exclude people from higher education and the opportunities it offers are divisive, unfair and impossible to square with the Constitution."

It was a statement that could have been made by the most strident and uncompromising opponents of racial preferences today -- or by civil rights pioneers fifty years ago.

W. spoke specifically to the Michigan program, saying "students are being selected or rejected based primarily on the color of their skin. The motivation for such an admissions policy may be very good, but its result is discrimination and that discrimination is wrong."

The same could have been said of the Texas program, and Governor Bush's experience watching the difficult and divisive debate and nine-year-long litigation prepared him to make that call.

At the same time, the divisiveness of the Texas debate, and the recent sting from Trent Lott's failure to come to terms with the Dixiecrat past, seemed present as the President added words of reconciliation to soothe those who desire racial preferences out of fear they will be frozen out of opportunity without them. "America's long experience with the segregation we have put behind us and the racial discrimination we still struggle to overcome requires a special effort to make real the promise of equal opportunity for all. My administration will continue to actively promote diversity and opportunity in every way that the law permits."

The president's words on Jan. 15 made it look like he had overcome his fear of the opposition and was trying a pass to the endzone to end race preferences once and for all.

The president's decision to intervene looked wise and farsighted, and in tune with the soul and history of his party.

Then, on Jan. 16 the ball fell astonishingly short. The president had the Supreme Court wide open in the end zone, and the ball slipped out of his fingers and fell on the ground behind him, waiting for someone -- anyone -- to pick it up and run with it.

Why did the president refuse to engage the critical issue -- the issue on which the Hopwood case was won -- that the objective of racial preferences is absolutely illegitimate? The objective of racial preferences is racially proportionate results and no government method to achieve that objective can be legitimate. It is the goal of racial proportionality, not just the method of "quotas" that is, in the president's words, "divisive, unfair and impossible to square with the Constitution."

Why did the president order his Solicitor General, Ted Olson (who argued the Hopwood case before the federal appeals court) to ignore the lesson of Hopwood -- and the lesson taught by the voters of liberal California and Washington? Americans understand that racial preferences, particularly in college admissions, are illegitimate. Poll after poll shows the overwhelming majority of Americans oppose those preferences, including substantial majorities among America's racial minorities.

The problem is not that racial "diversity" is not a "compelling" interest. The problem is that the Constitution demands the "equal protection of the laws." The problem is that the Constitution forbids the government to take notice of race at all.

The enemies of equal rights define unequal group results as the problem. But the Constitution does not guarantee a right to equal group results -- it only guarantees an equal individual right to opportunity. The goal of racially-proportionate results is one the Constitution forbids. The government must allow each person to compete on the merits, and may not allow color to affect the outcome.

This ideal is present in our founding -- in our Declaration of Independence and in our Constitution. Certainly, Americans have not always lived up to that ideal -- but for the federal government to deliberately divide us by race, as the Democratic Party has done for more than a century and a half, is to betray that ideal.

To support race division and race preference by the government is, in a very real sense, un-American.

More than that, W.'s decision to drop the ball is a most un-Republican one. There have been presidents before our time who ignored the great question of racial equality, or who acted against it. But they have not been those who followed the legacy of Lincoln.

From Lincoln to Eisenhower to Reagan and the elder Bush, it has been Republican presidents who sought to uphold the promise of equality. From James Buchanan (who failed to act on the eve of the Civil War) to Wilson and Roosevelt (who sent segregated troops to fight for democracy in Europe) to Lyndon Johnson (who initiated the travesty of race preferences in a misguided effort to overcome his party's failures), to Clinton (who fought to preserve the race preferences regime while pretending to "mend it"), it has been Democrats who were indifferent to the principle of equal rights at best, and actively hostile to it at worst. It was the Democrat George Wallace who stood in the schoolhouse door, and the Democrat (and Clinton mentor) Orville Faubus whose defiance of federal court orders forced Eisenhower to send troops to integrate Arkansas schools. (The exception is the great shame of the Republican Party, the man whose acquiescence to Southern Democrat segregationism made him president, Rutherford B. Hayes.)

Democrats may have switched sides on the question of which races deserve preferential treatment, but they have consistently stood against the principle of equal treatment under law.

And now George W. Bush has passed up the chance to make the next great stride towards equality under the law.

Ironically, this president, who values loyalty so highly, is being disloyal to the fundamental bedrock principles of his party -- and his country.

David Rogers was a co-plaintiff in the Cheryl Hopwood v. Texas lawsuit that ended racial preferences in university admissions in Texas (with no help from W. whatsoever), and is a senior fellow at the American Freedom Center, (www.americanfreedomctr.org).

Interesting take, from a guy who spent time and treasure on the issue, as one of the Hopwood plaintiffs.

I still hope we can move ahead from the start made in the President's speech, win the case, and finally overturn the whole mess of race preferences, race consciousness in law, and the vacuous and dangerous diversity rationale.

Cheers,

Richard F.

The writer is unfair to Rutherford B. Hayes. He could no longer keep Reconstruction going single-handedly than Ronald Reagan could outlaw abortion. Hayes was a good man.

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