At a news conference announcing the Department of Education's policy against race-exclusive scholarships, Assistant Secretary Michael Williams remarked that his job was to enforce the law. Tuesday, at a news conference amending that policy, Mr. Williams said that he had been "politically naive."
It is hard to imagine a worse sin than political naivete in the Bush administration, unless it is a conscientious effort to enforce the law. It happens that Mr. Williams simultaneously committed both, becoming perfectly symbolic of a presidency not only dedicated to expediency above duty but also willfully confused about civil rights law and lacking a coherent civil rights policy. Only the most result-oriented civil rights liberal could applaud this depressing chapter in the Bush administration.
Mr. Williams, a 37-year-old lawyer who is black, has the duty of enforcing federal civil rights laws applying to higher education. He first announced that almost all scholarships designated exclusively for minority students were illegal. Neither state nor private colleges and universities, he said, may offer such aid.
But Mr. Williams had not factored in either the criticism of his policy by civil rights lobbies or the weakness of the chief executive's backbone. Wanting no more from the lobbies, which had attacked him for successfully branding the recent civil rights legislation a "quotas" bill, Mr. Bush quickly caved in, posting notice through his press secretary that he was "very disturbed." Tuesday's revised policy was a virtually complete reversal.
It is a wacky reversal. Mr. Williams now says that the relevant regulations will be "enforced in such a way" -- enforced, not interpreted, mind you -- "as to permit universities receiving federal funds to administer scholarships established and funded by private persons or entities [who restrict] eligibility for such scholarships to minority students."
In other words, and for example, the Department of Education now will not bat an eye as the Fiesta Bowl -- a private entity -- gives the universities of Louisville and Alabama the $100,000 it had pledged to them exclusively for minority students in honor of Dr. Martin Luther King Jr., until the politically illiterate Mr. Williams flashed a red light of illegality.
Louisville and Alabama are state-funded public schools, but under the amended policy, the Department of Education also would avert its eyes if a private college were in the Fiesta Bowl and the recipient of its $100,000 minority-scholarship fund. Only if a private institution were to use its own funds for race-exclusive scholarships might the department trouble itself to intervene, and then only, one assumes, if Mr. Williams asked the White House to take a poll.
Conceivably the administration could have offered a legal rationale for its amended policy that is within the realm of reasonable discourse. But it did not do so because it could not. Lawyers at both the Department of Justice and the White House concluded that the law compelled Mr. Williams' enforcement policy. Title VI of the 1964 Civil Rights Act prohibits recipients of federal funds from providing different financial aid programs on the basis of race or national origin, and the Civil Rights Act of 1988 provides the legal basis for applying Title VI to all aspects of private higher education.
Liberals comfortable with the new policy must ask whether today's victory is tomorrow's disaster: The policy is so lacking in legal principle as to allow not only a scholarship program named for Martin Luther King Jr. but also one named for David Duke. Meanwhile, it should not pass liberal notice that the administration effectively rewrote the 1988 rights act; evidently, private institutions will be allowed to do as private donors tell them to do. The Bush administration will not care.
Nor will it trouble itself with the obvious constitutional questions raised by race-exclusive scholarships funded by states and localities. These things are covered, according to Tuesday's announcement, "by the Supreme Court's decisions construing the Constitution and thus cannot be addressed administratively." This is an abdication of presidential responsibility to preserve the Constitution.
Critics of Mr. Williams say that he should have cleared his policy with the White House beforehand. But the significance of this story lies in the fact that Mr. Williams dared enforce unambiguous law in a context that sharply raises the most important question in civil rights, namely whether society's benefits and opportunities should be allocated solely on the basis of such arbitrary characteristics as race and ethnicity.
Mr. Williams cannot be faulted for thinking that a president who has made so much of his opposition to racial quotas would not TTC flinch at his enforcement action. That Bush did so shows how unprincipled and unbelievable is his opposition to racial preferences. On civil rights, conservatives and liberals both can conclude that this is an administration with no policy but the politics of the day.
Terry Eastland is a resident fellow of the Ethics and Public Policy Center in Washington and co-author of "Counting by Race." He wrote this commentary for the Los Angeles Times.