Remember President Clinton’s promise to “mend” affirmative action? It seems like ancient history, but it was made less than two years ago, in response to a Supreme Court ruling that significantly narrowed the circumstances in which the government could take race into account in awarding its own contracts.
Not only has the president not seen fit to mend any affirmative action programs, but his appointees are now actively involved in flouting one court decision that banned racial preferences in school admissions. They have also virtually stonewalled application of the very Supreme Court ruling that led to the president’s promise.
Last month, the Department of Education’s top civil rights enforcer, Assistant Secretary Norma Cantu, sent out letters to Texas state universities telling them to disregard the 5th Circuit Court’s 1996 decision in the Hopwood case. The Hopwood case is important because the court’s opinion is the most far-reaching denunciation of racial preferences yet handed down by any federal court.
The case began in 1992 when Cheryl Hopwood, a young mother who had worked her way through college earning a 3.8 undergraduate grade point average, was denied admission to the University of Texas law school. Hopwood sued when she learned that the school had a dual admissions system–one for blacks and Hispanics, another for whites and Asians–and that 84 minority students with lower grades and test scores than her own had been admitted under this process. In a mixed decision, the district court struck down the university’s discriminatory dual admissions system but awarded Hopwood and three other plaintiffs who had joined her case only $1 in damages, refusing to admit any of them to the law school.
On appeal, the 5th Circuit went further than the lower court, however, ruling that the law school “may not use race as a factor” in admissions even “for the wholesome purpose of correcting perceived racial imbalance in the student body.” In other words, the court ruled that racial quotas and preferences, no matter how well intended, are discriminatory. Period. Since the U.S. Supreme Court chose not to hear the case, this ruling now stands as law in the 5th Circuit (which covers Texas, Mississippi and Louisiana), and Texas schools have attempted to comply with it.
Now along comes Clinton appointee Norma Cantu to try to overrule the court by fiat. In a letter sent to Texas legislators in March urging Texas schools to continue race-based affirmative action programs, she wrote that not only is using race permissible in choosing students, universities “have a clear legal obligation to do so to remedy current discrimination or the effects of past discrimination.” And if the schools choose to follow the court’s direction rather than Cantu’s, they stand to lose $500 million in government aid such as scholarships, work study and research grants.
And the Clinton administration is no more amenable to following Supreme Court rulings. The Supreme Court’s Adarand decision involved federal set-asides for minority contractors. In June 1995, the court ruling drastically narrowed the circumstances in which race could be used as a factor in awarding federal contracts. Most observers believed the ruling would be the death knell for race-based preferences in federal contracting and some other federal programs. But to date, the Clinton administration has simply dragged its feet, refusing to implement the decision as written.
In Colorado, where the Adarand case originated, the administration has continued to defend the original program in the lower court where the case was remanded for final judgment. Perry Pendley, president of Mountain States Legal Foundation, which represented Adarand, says the Clinton administration “is defending the indefensible.” Its stalling tactics have worked, however. Nearly two years after the Supreme Court decided that the government’s program was unconstitutional, the administration is still defending racial preferences rather than replacing them.
Promising to mend affirmative action was good campaign politics. But like so much else in that category, the Clinton administration never really had its heart in the job.
