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Latino Leaders Back Affirmative Action in Higher Education… Don't Go Wobbly, Mr. Bush!… White House Briefs Take Cautious Stand…Rice Demurs…Dishonest On Diversity

U.S. Latino Leadership Backs Affirmative Action in Higher Education

Open Letter to President Bush Urges His Support for Supreme Court Cases

January 8, 2003
Copyright © 2003 PR Newswire. All rights reserved.

WASHINGTON, Jan. 8 /PRNewswire/ - Leaders of the nation's most prominent Latino organizations gathered in Washington, D.C. to show their support for affirmative action in higher education, now in danger of being overturned by the U.S. Supreme Court. These leaders will sign an open letter to President Bush urging him to back affirmative action at a news conference.

At issue are two Supreme Court cases currently under review; Grutter v. Bollinger and Gratz v. Bollinger that challenge the University of Michigan's right to consider race as a plus factor in its law school and undergraduate admissions processes. The outcome of this decision may have a significant impact on Hispanics and their ability to obtain higher education. Of the 35 million Latinos in the United States, only 11 percent have obtained postsecondary education. The proportion with a bachelor's degree or more is much lower for Hispanics (10.6 percent) than for non-Hispanic Whites (28.1 percent), according to the U.S. Census Bureau. More than one-third of the Hispanic population is under 18 and approaching college age.

Latino leaders warn that if the Court rules against the university, Latinos will lose opportunities to attend institutions of higher learning to become doctors, lawyers, politicians and business leaders who make a strong contribution to society. Corporations agree on the importance of affirmative action. General Motors and 32 other Fortune 500 corporations have filed "friend of the court" briefs supporting the University of Michigan and stating the importance of cultural diversity to their businesses.

Hispanic leaders also note that changes in affirmative action policy may prevent deserving Hispanic students from receiving the financial aid they need to attend school.

Signing the 6' x 4' letter to President Bush is a coalition of national Hispanic organizations, including Moctesuma Esparza, Chairperson, New America Alliance; Antonio Flores, Ph.D., President and CEO, Hispanic Association of Colleges and Universities; Alma Morales Riojas, President and CEO, MANA-A National Latina Organization; Marisa Rivera-Albert, President, National Hispana Leadership Institute; Alfred Ramirez, President, National Community for Latino Leadership; Cecilia Munoz, Vice President for the Office of Research, Advocacy and Legislation, National Council of La Raza; Brent Wilkes, National Executive Director, League of United Latin American Citizens; Marisa Demeo, Regional Counsel, Mexican American Legal Defense and Education Fund; Ivonne Cunarro, Executive Director, National Association of Hispanic Publications; Alicia Diaz, Director, Government Affairs & Legislative Policy, Cuban American National Council; Mari-Carmen Aponte, University of Puerto Rico; and Maria Perla, Student, Cesar Chavez Charter High School, among others. Maya Advertising & Communications

Don't Go Wobbly, Mr. Bush!

‘Restate Your Opposition To Racial Preferences’


January 8, 2003
Copyright © 2003 THE WALL STREET JOURNAL. All rights reserved.

Whether to go to war in Iraq is not the only major decision facing President Bush in the next several days. By Jan. 16, he must decide whether his administration will stand for colorblind equal opportunity or for politically motivated racial preferences.

Briefs supporting challenges to the University of Michigan's affirmative-action admissions policies are due in the Supreme Court on that day, and the Justice Department wants to file a brief making clear that a desire for prefab "diversity" does not justify racial and ethnic discrimination. But the president himself must decide whether to let the Justice Department do the right thing.

Nation's Laws

As head of the executive branch, the president is charged with seeing to it that the nation's laws are faithfully executed. I suspect that nearly all of the administration's lawyers, including Theodore Olson, the solicitor general, have concluded that the University of Michigan's use of racial and ethnic preferences, which give additional points to black and Hispanic applicants, violates the equal protection clause of the 14th Amendment, Title VI of the Civil Rights Act of 1964, and section 1981 of title 42 of the U.S. Code.

In a case of this importance, it would be awkward for the federal government not to state its views. And so the next question is whether the president will put on his "political strategy" hat and decide that the administration ought not go on record as opposing the university's policies.

It is no secret that Republicans generally, and President Bush in particular, hope to attract more minority voters than they have in recent elections. It is also the conventional wisdom among some Republican politicos that opposing affirmative action is a sure way to alienate such voters.

But the conventional wisdom is wrong. "Affirmative action" has become an ambiguous phrase that means different things to different people. In its traditional sense, affirmative action meant nothing more than enforcing nondiscrimination laws coupled with proactive steps, such as outreach and training, to increase the pool of eligible candidates.

The left understands this and shrewdly exploits the ambiguity for its own ends, insinuating that the University of Michigan uses traditional affirmative action, when in fact the university employs egregious and discriminatory double standards that treat applicants differently based on the color of their skin. When the Center for Equal Opportunity analyzed admissions records at Michigan in the mid-1990s, we found that the odds ratio favoring admission of a black applicant with identical grades and test scores to a white applicant was 174 to 1, the second largest we found at the 47 public colleges and universities we studied.

The president should make clear that he supports the original meaning of affirmative action, but that he opposes the illegitimate use of racial and ethnic preferences. If he does this, he will enjoy overwhelming political support. To give just one example, a recent Washington Post/Harvard/Kaiser Family Foundation survey asked 1,709 Americans this question: "In order to give minorities more opportunity, do you believe race or ethnicity should be a factor when deciding who is hired, promoted, or admitted to college, or that hiring, promotions, and college admissions should be based strictly on merit and qualifications other than race or ethnicity?" Ninety-two percent -- including 86% of African-Americans -- said that decisions "should be based strictly on merit and qualifications other than race/ethnicity."

There's another survey that the president ought to consider when he makes his decision. When Mr. Bush was running for re-election as governor of Texas in 1998, he filled out a candidate questionnaire sent to him by the nonprofit Campaign for a Colorblind America. Next to the statement, "For the sake of obtaining a diversity of viewpoints and experiences, public educational institutions should be allowed to consider the race and ethnicity of applicants," he checked the box marked "Disagree." Then he wrote in, "I do not support race-based quotas or preferences. Public colleges and universities have an affirmative duty to offer equal opportunity to all applicants. Equal opportunity doesn't guarantee equal results -- but it guarantees that every person will get a fair shot based upon their potential, heart and merit."

This is not an isolated statement. When he was running for president, Mr. Bush said, "I want to end quotas, racial preferences, policies that tend to pit one group of people against another," and later, in a debate with Al Gore, he reiterated that quotas "pit one against another" and are "bad for America." This president has made his word his bond. He should live up to the commitments he has already made to end racial double standards.

The Trent Lott fiasco, by the way, should make it easier, not harder, for the president to do the right thing in the Michigan cases. The president was an early and strong critic of Sen. Lott's Strom Thurmond remarks, and he has gained credibility on civil rights issues as a result. His condemnation of Mr. Lott's remarks and Michigan's policies alike are each rooted in the original, colorblind ideals of the civil-rights movement.

In all events, when the president makes this decision, he should make it neither on legalistic nor political grounds, but as the nation's leader at a crucial point in American history.

We are already at war against terrorism, and the president will be understandably reluctant to take any "divisive" position when he may soon be putting more young Americans in harm's way in Iraq. But if there is any lesson that we can already draw from this war, it is that America cannot survive as a nation of racial and ethnic enclaves.

If the president wants to leave as his legacy an America more united than ever before, he will speak out forcefully against racial and ethnic preferences. Such preferences do indeed pit one American against another. They typically discriminate not only against WASPs, but against Asians, and Arab-Americans, and Jews, and ethnic Catholics. According to studies done by the Center for Equal Opportunity, they frequently discriminate against Latinos as well.

And in many ways the group hurt most is the one supposedly most helped by preferences: African-Americans. Black students are now being told that they must be held to lower academic standards than everyone else. It is, as the president himself has declared in a memorable phrase, "the soft bigotry of low expectations," and it simply perpetuates racial stereotypes and prejudices.

Ethnic Preferences

The root question in the Michigan case is what sort of country America ought to be. Institutionalized racial and ethnic preferences have no place in that vision.

Discrimination still exists, the playing field is not completely level, but there are many and much better ways than affirmative discrimination to ensure what the president has called "affirmative access." Enforce the civil rights laws, improve K-12 education through school choice and accountability, provide financial aid to deserving students of all colors, set up special programs for students who are the first in their family to attend college, recruit far and wide for the best students of all races -- but don't engage in racial and ethnic discrimination.

Ms. Chavez is president of the Center for Equal Opportunity and author of "An Unlikely Conservative: The Transformation of an Ex-Liberal" (Basic Books, 2002).

White House Briefs Take Cautious Stand in Race Case


January 17, 2003
Copyright © 2003 THE NEW YORK TIMES. All rights reserved.

WASHINGTON — As an example of political stage-management, the Bush administration's handling of its Supreme Court brief in the Michigan affirmative action case was masterly, impressive even by the standards of a White House unusually skilled at spin control.

By denouncing the University of Michigan's race-conscious admission policies in a late-afternoon live television appearance on Wednesday, President Bush was able to dominate an entire 24-hour news cycle with an image of strong opposition to affirmative action.

It was the message his core conservative supporters most wanted to hear and one calculated to put an end to the growing carping from the right that the brief would not be tough enough.

So by the time his solicitor general, Theodore B. Olson, actually submitted the administration's briefs late tonight as the clock approached a midnight filing deadline at the court, the briefs were a fading second-day story and there was hardly anyone still on duty — certainly not the television news anchors — to notice that the reality of its legal argument diverged substantially from the rhetoric of the president's prime-time statement.

True to his promise, the briefs did ask the court to declare unconstitutional the undergraduate and law school admissions programs in dispute. But it did so by means of a legal analysis that, far from insisting that any consideration of race was impermissible, did not even ask the justices to overturn the Bakke decision, the 1978 landmark ruling that by allowing race to be used as a "plus factor" ushered in a generation of affirmative action in public and private college admissions.

It was as if the administration had filed a brief denouncing abortion without asking the court to overturn Roe v. Wade.

"In the end, this case requires this court to break no new ground" in order to hold the law school's admissions policy unconstitutional, the administration said in Grutter v. Bollinger, one of the two cases. The sentiment was echoed in the brief in the second case, Gratz v. Bollinger.

After the president's television appearance on Wednesday, the Senate Democratic leader, Tom Daschle, went to the Senate floor to criticize the administration's position on affirmative action. The administration had shown an insensitivity to civil rights, Mr. Daschle said, "in virtually every single occasion when actions spoke louder than words."

But this time, it turned out, the words spoke louder than the action.

Perhaps the divergence of rhetoric from reality reflected a split-the-difference compromise between warring factions within the administration — much as the Carter administration's awkwardly compromised brief did in the Bakke case itself. On that occasion, an internal ideological struggle that had become painfully public led the Carter administration to ask the justices to send the case back to the California Supreme Court for further consideration.

Or perhaps the administration's Janus-like posture reflected a more strategic calculation that its interests were best served by looking in both directions at once. The president got the political benefit of denouncing Michigan's undergraduate admissions program as a quota system (a characterization the briefs emphasize but that the university strongly disputes) while his lawyers got to make the more nuanced arguments that have the only real chance of succeeding at the court.

The balance on this issue is almost certainly held by Justice Sandra Day O'Connor, who perhaps among all the court's members is the least likely to be impressed by an all-or-nothing argument that takes the court further than necessary to resolve the particular dispute. Based on her positions in cases involving public contracting, employment discrimination, and redistricting, Justice O'Connor will look skeptically at the justifications for any government policy that makes use of race, and she is quite likely to disapprove of one or both of Michigan admissions programs. But she is unlikely to support a sweeping prohibition against any consideration of race.

Many political analysts have emphasized the lesson President Bush learned from his father's re-election defeat: do not ignore the Republican Party's conservative base. But the experience of the first Bush administration also offers another lesson: do not push the Supreme Court too far.

The first President Bush was aggressive in pushing difficult social issues onto the court's agenda, urging the justices to overturn Roe v. Wade, for example, or to start reopening the door to organized prayer in public schools. But the moderate Republican justices on the court — Justice O'Connor along with Justices Anthony M. Kennedy and David H. Souter — recoiled from the pressure, voting for abortion rights and against prayer in schools in precedents that remain on the books.

"I don't think the White House is well served by having a solicitor general come to the court and read the legal equivalent of a press release," Chief Justice William H. Rehnquist told the legal writer Lincoln Caplan in 1986, as recounted in Mr. Caplan's 1987 book "The Tenth Justice."

Several lawyers with Supreme Court experience said today that even a completely accurate presidential discussion in public of a Supreme Court brief before the brief was filed would be a striking breach of tradition, if not decorum. They wondered whether the theatrics of the past few days would prove counter-productive.

"It accentuates the extent to which the whole issue is a policy question rather than a legal issue," Prof. Thomas W. Merrill of Northwestern University Law School, said in an interview today.

Professor Merrill, a deputy solicitor general in the late 1980's, noted that in ordinary cases, such as those on the meaning of federal statutes, the government's views receive deference from the court. "The office has a huge success rate," he said, referring to the 20 or so career lawyers who serve in the solicitor general's office. "The court knows it can rely on smart lawyers who have no ax to grind to come up with solutions that make all the pieces of the puzzle fit together."

But on high-profile social issues, he continued, the justices have their own views and look to the solicitor general for guidance, if at all, of a different sort. They look for signals about the political atmosphere, "for what's do-able," Professor Merrill said. "If a conservative administration doesn't take a strong position in a particular case, that's a signal."

Rice: Race Can Be Factor In College Admissions

By Mike Allen

January 18, 2003
Copyright © 2003 The Washington Post Company. All rights reserved.

National security adviser Condoleezza Rice announced yesterday that she believes race can be used as a factor in college admissions, going beyond President Bush on a central question in his affirmative action policy.

Rice issued a statement saying that she supports the president's decision to challenge race-conscious admissions as administered by the University of Michigan and that race-neutral means are preferable. But she said there are occasions when "it is appropriate to use race as one factor among others in achieving a diverse student body."

Bush stopped short of that view in briefs the administration filed Thursday night asking the Supreme Court to overturn an admissions system at the university that gives preferences to minorities. The administration, which limited its legal briefs to the case before the court and made no broad statements about affirmative action, said Michigan officials "cannot justify the express consideration of race in their admissions policy."

Rice's announcement was an unusual case of a member of Bush's inner circle taking a different public stand on a major issue. In a sign of the sensitivity of the issue and her close relationship with Bush, aides reported that the statement was made with his blessing.

Rice's statement came after an article in The Washington Post yesterday in which several White House aides said she had played a crucial role in Bush's deliberations and helped persuade him to publicly oppose Michigan's program. Officials who described her role to The Post noted that it was unusual for her to become such a major factor in an issue that did not involve foreign policy. Their comments had the effect of associating a respected African American adviser to Bush with a decision that has been criticized by many black leaders. Rice reportedly was angry about the article in part because she believed it had been written only because she is black.

Rice, the first black provost of Stanford University before joining the administration, has become so close to the president and first lady Laura Bush that she is often described as a de facto member of the family, spending many of her weekends with them at Camp David.

In the five-sentence statement she issued yesterday, Rice endorsed the thrust of Bush's decision but suggested he had not taken all her advice.

"I agree with the president's position, which emphasizes the need for diversity and recognizes the continued legacy of racial prejudice, and the need to fight it," she said. "I believe that while race-neutral means are preferable, it is appropriate to use race as one factor among others in achieving a diverse student body."

It is clear that both agree Michigan's program is flawed, but Rice made a broader statement that there are situations when race-conscious admissions programs might be necessary. Bush has avoided going that far. In remarks on the Michigan case Wednesday, Bush did not directly say whether race could be considered in admissions decisions, although he said schools should seek diversity by looking at "a student's potential and life experiences."

Yesterday, administration officials said they saw no contradiction between Rice's position and Bush's because his briefs were silent on the question of whether race could ever be an appropriate factor in admissions.

"Dr. Rice supports the president's actions in the Michigan case," a senior official said.

In an interview yesterday with American Urban Radio Networks, Rice said she agrees with affirmative action "if it does not lead to quotas and if people work hard at it to look at the total individual."

"It is hard to talk about life experiences or the experiences of an individual without recognizing that race is part of that," she said.

Rice told the radio network she has been "a supporter of affirmative action that is not quota-based and does not seek to make race the only factor."

"I certainly hope that we will get to the day where we do not need to take race into account even as one factor," she said. "I believe that one day we will have educational systems that are preparing everybody."

Rice has had praise for some uses of affirmative action over the years. Stanford released minutes from a 1998 faculty senate meeting in which Rice was quoted as saying that she was "a beneficiary of a Stanford strategy that took affirmative action seriously," pointing to her arrival at Stanford in 1981 as a fellow in the arms control and disarmament program.

Stanford said the number of black faculty members had increased from 36 to 44 when she was provost, from 1993 to 1999.

The liberal group People for the American Way, one of Bush's most persistent critics, issued a news release hailing Rice's views as "very good news" and providing a link to her statement on the White House Web site.

Secretary of State Colin L. Powell said during Bush's campaign that he hoped the University of Michigan would prevail in the case, and copies of his comments are being used by some university officials to build support for their policies. Powell told WJR-AM in Detroit in September 2000 that he thinks affirmative action "is still necessary."

"I will continue to speak out for it," he said, according to a transcript from Video Monitoring Services of America. "There is a case now pending, of course, with the University of Michigan that I hope the university wins."

Dishonest on Diversity


January 18, 2003
Copyright © 2003 The Washington Post Company. All rights reserved.

LIBERAL GROUPS professed outrage in response to the government's legal briefs opposing the University of Michigan's affirmative action programs in the Supreme Court this week. The tempest is a bit mystifying. It's no big surprise that President Bush would oppose an explicit racial preference program, because that was his position during the presidential campaign; the only surprise might be the reported debate within the administration. Still, the critics are right on the underlying issue: The government's briefs present an unpersuasive effort to split a hair that just won't split.

The administration argues that ensuring diversity is an important interest. But it contends that the race-conscious admissions programs at Michigan's undergraduate and law schools are unconstitutional anyway. They amount to a racial quota system, the government argues. And race-conscious admissions, it says, are inappropriate when race-neutral alternatives are available -- such as the University of Texas system, set up under then-Gov. George W. Bush, under which public school students statewide who graduate in the top 10 percent of their classes are guaranteed a slot. The brief cagily avoids addressing whether race could be considered in the absence of such alternatives.

Mr. Bush's position may be superficially attractive. Why should a state university -- or a private school getting federal money -- consider race when it can ensure diversity by other means? But its problems are serious. For starters, it isn't clear why Texas's 10 percent plan should survive constitutional scrutiny if Michigan's does not. While formally race neutral, the plan was adopted to produce results similar to conventional affirmative action -- substantial minority enrollment -- after a court prohibited race-conscious policies. It is, in other words, an overt proxy. But the Constitution doesn't generally allow discrimination by nominally non-discriminatory means. If considering the race of an applicant is illegitimate, using his school's location as a surrogate should not solve the problem.

Moreover, race-neutral alternatives such as Texas's have serious disadvantages. They may compromise academic standards more than traditional racial preferences, for example. And they are not a viable model for smaller private schools, in any event. They also depend on the continued de facto segregation of neighborhoods and schools, a reality whose permanence society should neither embrace nor rely upon.

Nobody should be entirely comfortable with government's treating people differently by race. But achieving diversity in the educational arena is a goal with such broad support that, one way or another, it likely will be pursued by most states and educators. Does the court really want to remove from the table the most direct and honest way to accomplish an outcome that everyone -- President Bush included -- embraces?

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