The Magazine

Adarand, Again

Jul 30, 2001, Vol. 6, No. 43 • By DAVID TELL, FOR THE EDITORS
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LAST OCTOBER IN ST. LOUIS, during the closing minutes of their third and final televised debate, Al Gore and George W. Bush had a little exchange on the proper role of affirmative action in federal decision-making. A woman in the audience asked Governor Bush what his intentions were with respect to "diversity" and "inclusiveness" and so on. Bush, in response, went on about how he didn’t like "quotas" very much, but did think government might appropriately "help meet a goal of ownership of small business, for example." It was this kind of "affirmative access" that he would pursue as president. And he would consequently "make you proud."

Following up, Vice President Gore patiently explained that he, not Bush, was actually the fellow committed "with all my heart" to affirmative action. Of course, when you’re committed with all your heart to affirmative action, it simply means—pay attention, boys and girls—that you’re prepared to "take extra steps to acknowledge the history of discrimination and injustice and prejudice and bring all people into the American dream." With that in mind, could anyone in class tell the vice president what was George W. Bush’s real position on affirmative action? And, by extension, on the American dream, as well? That’s right: "The governor is against it," Gore said, raising an eyebrow for emphasis.

This got the two men sniping back and forth for a moment, until Gore challenged his opponent firmly to commit on the issue, yea or nay: "Are you for what the Supreme Court says is a constitutional way of having affirmative action?" At which point Bush appealed to the referee—that night’s rules barred the candidates from addressing each other directly—and declined to answer. "I think that speaks for itself," the vice president sneered. And that was that.

To review, then, as most of the nationwide television audience must have figured it: On one side of the controversy, favoring race-conscious government policy as a necessary means to acknowledge historical injustice, were Al Gore and the United States Supreme Court. And standing at least a few steps over on the other side was Bush, who seemed like a pretty nice man all in all, but nevertheless wasn’t quite prepared to say he agreed with the Court. Which is to say, Bush probably couldn’t be depended on, as president, to preserve executive branch affirmative action programs in their current form. Or, for that matter, when it came time to make bench appointments, to preserve the law of affirmative action as previously promulgated by the judiciary.

It pleased—and still pleases—both major parties to encourage such a general view of things, the better to pacify their unsuspecting ideological loyalists. But with each passing month of the new administration, if you know where to look for evidence, it becomes increasingly clear that the picture is almost perfectly false, and in almost every particular.

Much of it was plainly false even last October, in fact. There was, to begin with, Gore’s astonishingly cheeky endorsement of "what the Supreme Court says is a constitutional way" for the federal government to take note of a citizen’s race before deciding how nicely to treat him. It has been many, many years now since any such scheme has survived full constitutional adjudication—indeed, it’s only happened once since the Supreme Court’s 1989 Croson ruling, and that single exception was subsequently overruled. So Croson, a case about the Richmond, Virginia, city government’s insistence that only minority-owned subcontractors should be eligible to install the toilets in its municipal jail, has remained the essential precedent. And Croson stands for the proposition, one would think uncontroversial, that we fought a Civil War to eradicate such racialism from our nation’s laws.

In order to repair the direct damage of its own illegal discrimination against an identified class of actual victims, the Croson court declared, public-sector institutions might theoretically be permitted to take race-conscious action on a time-limited, "narrowly tailored" basis. But neither past nor present "societal" bias provides a generalized warrant for purportedly "benign" discrimination. Quite the contrary, absent a fact- and case-specific "compelling interest" in the remediation of its own recent misdeeds, government is positively foreclosed from employing any conceivable racial classification. Not to put too fine a point on it, affirmative action—even though it stubbornly persists in ten thousand federal and state laws across the country—is almost without exception unconstitutional.