CHICAGO - In its first opportunity to take a stand on affirmative action, the Bush administration is taking a U-turn by deciding not to change directions. If that sounds a little wacky, just remember that we're talking about politics.
Mr. Bush's administration filed a brief with the Supreme Court that lets the Clinton-era policy stand. It has asked the Supreme Court to uphold a Department of Transportation program the Clintonites defended to help minority contractors.
Before the filing, Mr. Bush spoke little about affirmative action. He did say during one of last year's presidential debates that he opposed "quotas," but favored "affirmative access." As an example of what that meant, he offered that government might appropriately "help meet a goal of ownership of small business, for example."
That's what the Transportation Department's "disadvantaged business enterprise" program, which aims to give 10 percent of all contracts to disadvantaged businesses, is designed to do.
The case in question, now titled Adarand vs. Mineta, grew out of a challenge brought years ago by the white-owned Adarand Constructors in Colorado Springs, Colo. Adarand had submitted the low bid for a Transportation Department contract, but it was awarded to a minority company as part of the department's "disadvantaged business enterprise" program.
Adarand sued. The Supreme Court ruled in 1995 that lower courts should review the program using a new standard of "strict scrutiny" to see whether race was justified as a factor in awarding federal contracts. Last September, the U.S. Court of Appeals for the 10th Circuit in Denver said the program met the new test, and the administration now agrees.
As a result, Attorney General John Ashcroft, who promised in his confirmation hearings to defend even those laws with which he disagreed, will now get his chance. He and Solicitor General Theodore Olson, both highly vocal opponents of race-conscious programs, now find themselves leading the fight to defend such programs.
Why has Mr. Bush decided to pass up this opportunity to fight the programs the way the Reagan administration did?
One big reason may be Hispanic votes. They're "the hottest commodity in politics," as USA Today recently put it.
The same story also mentioned that, in seeking Hispanics for administration jobs, the Bush administration has set an informal recruitment goal of at least 10 percent. If so, Mr. Bush would not be the first politician to oppose racial, ethnic or gender "quotas" in public while setting racial, ethnic and gender "goals" or "timetables" for their own use.
That form of affirmative action is as old as political patronage. Throughout the last century, as new immigrant ethnic groups flowed mostly from Europe into American cities, politicians found ways to make sure the newcomers had "some of their own" represented in jobs, contracts and prominent ballot positions.
Unfortunately, racial discrimination kept most of these goodies out of black neighborhoods, even when black political bosses like Chicago's William "Big Bill" Dawson or New York's Adam Clayton Powell rose up. Dawson, for example, would rather have 1,000 low-paying jobs to hand out than 500 high-paying jobs, because the low-paid workers would be more politically loyal.
"Affirmative action" emerged in the late 1960s and early 1970s with Presidents Lyndon B. Johnson and Richard M. Nixon, who colorfully said he wanted to give blacks "a piece of the action." Privately, he also wanted to drive a wedge between two bulwarks of the Democratic Party's coalition, minorities and organized labor. He achieved both goals.
For years, the Republican Party's national wing won white votes by portraying "quotas" as a threat to whites. But, as with earlier immigrant groups, Hispanic population growth across the country has made them an increasingly attractive bloc to be courted. By one widely reported estimate, if ethnics vote in 2004 in the same proportion that they voted in 2000, Hispanic growth would lead to a Bush loss by 3 million votes.
So it is not surprising that Mr. Bush, who won 35 percent of the Hispanic-American vote last November, is trying to have it both ways on affirmative action now. He has not been an advocate for it, but he hasn't attacked it, either. Even if the Supreme Court decides against his position on Adarand, he can say that at least he tried.
In the meantime, affirmative action, always under attack, survives another day. The Bush administration joins a long line of critics who found affirmative action to be troubling, yet, as a way to open opportunities to those who have been shut out, very hard to replace.