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Jewish World Review Feb. 19, 1999 /3 Adar, 5759

Mona Charen

Mona Charen

Depends what you
mean by "acting"

(JWR) --- (http://www.jewishworldreview.com) WHAT IF KENNETH STARR AND THE REPUBLICANS had included the across-the-board lawlessness of this administration in their indictment of the president?

Might they have received a more respectful hearing from the public? We'll never know, but now comes more evidence of it.

President Clinton is seeking to reappoint Bill Lann Lee as assistant attorney general for civil rights. In the fall of 1997, the president nominated Lee for the post, only to see his nomination fail in the Senate. But in violation of the Federal Vacancies Reform Act, President Clinton gave him the job anyway. Lee is called "acting," but everyone knows that this is a mere fig leaf to avoid Senate confirmation. Someone should ask the president about this, though he may say it depends on how you define "acting."

In his 14 months in office, Lee, with the full resources of the Justice Department, has pursued exactly the policies this administration has claimed it does not favor: racial preferences in education, government contracting, employment and voting.

Perhaps the next battle over Lee's nomination will shed some light on the fact that this administration and most of the educational institutions in the country, as well as many state and local governments, have been flouting the law on racial classifications for some time.

Here is a typical scenario: A student applies to college or graduate school and is rejected. Soon thereafter, he discovers that a classmate whose test scores and grades were significantly lower than his own was accepted by the same institution. Is that legal? The Center for Individual Rights (1-202-833-8400) wants that student to know that it is not and has accordingly published two slim pamphlets -- one for students and the other for university trustees -- explicating the law.

Most Americans have no idea that naked racial preferences are illegal. Those who have studied the history of civil rights legislation recall that Sen. Hubert Humphrey promised to eat the Civil Rights Act of 1964, page by page, if it were ever interpreted as permitting racial quotas or reverse discrimination. The happy warrior died before having to make good on that promise. But as everyone knows, reverse discrimination did become the order of the day and remains so.

Yet discriminating on the basis of race -- even for the apparently noble purpose of remedying past societal discrimination against certain groups or to achieve racial diversity -- is flatly illegal and has been for 20 years, since the Supreme Court decided the Bakke case.

Justice Lewis Powell's opinion in that case, in which he allowed that race could be a "plus factor" when otherwise equally qualified candidates were vying for the same spot, has been twisted beyond recognition to permit every kind of quota and set-aside.

A college or university, the CIR informs us, is not permitted to set aside a particular number of slots in its classes for particular racial groups in order to compensate for "societal" discrimination or even to achieve "diversity." Set-asides are a lawful remedy only if the institution itself discriminated in the past. As Justice Powell wrote: "If petitioner's purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected ... (as) discrimination for its own sake. This the Constitution forbids."

In the first year after the University of Texas Law School abandoned its preferential admissions program for blacks and others, minority enrollment plummeted, and there were dire predictions in the press of a return to "lily white" schools. But in the year following, minority enrollment rebounded. Ending preferences does not end higher education for minorities.

Proponents of quotas and preferences believe fervently that they are pro-minorities whereas those who believe in strict colorblindness are anti-minorities. The most eloquent reply to this prejudice was offered by Justice Antonin Scalia in the 1995 case of Adarand vs. Pena: "To pursue the concept of racial entitlement -- even for the most admirable and benign of purposes -- is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American."


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2/17/98: In Denial
2/13/98: Reconsidering Theism
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2/2/98: Does America care about immorality?
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1/27/98: What If It's Just the Sex?
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12/16/97: Do America's Jews support Netanyahu?

©1998, Creators Syndicate, Inc.