Quota King

...The reason...

...But then the review added: "Affirmative action, when done right, is not reverse discrimination...

...During the 1992 election campaign, George Bush let Clinton off the hook by never raising affirmative action...

...But in the end Clinton wound up satisfying the bean counters—if not by the precise numbers of minorities and women he appointed to office, then certainly by his choices for appointments to handle affirmative action policy...

...In pushing for diversity, Patrick was only following the president's lead...

...In July 1994, after the school board had appealed the decision, the Clinton Justice Department decided that the government's position was wrong...

...Both Taxman and Williams, the judge wrote, had "a legitimate entitlement to have the layoff decision made randomly rather than on the basis of race...

...But the administration changed that program only under the duress of a lawsuit...

...The significance of the 5-to-4 majority opinion, written by Justice Sandra Day O'Connor, lies in its doctrine: Racial preferences used by the federal government must meet the same degree of scrutiny—the highest there is—as those used by states and localities...

...Clinton appointees throughout the government knew that diversity mattered in the selection of their subordinates and, indeed, in the make-up of the govemment workforce...

...The Justice Department already has promised to recommend a veto of the anti-preference legislation, co-sponsored by Sen...

...What an insult...

...Free to present himself on race pretty much as he wished, Clinton assured the nation of his opposition to quotas while offering himself as a New Democrat, a species within his party critical of preferential treatment...

...Though one held that affirmative action should not go on forever, the administration, having spent five months reviewing The American Spectator • May 1996 federal programs, had been unable to find a single program it could terminate...

...A third principle held that there should be "no reverse discrimination...

...Though such a complaint contains few specific allegations and is not supported by any evidence, it is the plaintiffs lawyer's ticket to begin intimidating the Company...

...The American Spectator • May 1996 McCurry told him that Clinton was referring to the Federal Communications Commission's notorious tax certificate policy, under which corporations selling their broadcast outlets at discounted prices to minorities may defer sales taxes indefinitely...

...Before the Company can get the complaint dismissed, the plaintiffs lawyers can subject the Company to extremely burdensome document requests and its executives to exhausting and time-consuming depositions...

...Charles Canady...

...He may point, for example, to the National Science Foundation's racially exclusive summer camp, altered last fall to permit admission by students of any race or ethnicity...

...Looking back on these appointments, one senior White House official told me, "We gave civil rights over to the groups...

...But the Pentagon took that action upon advice from the Justice Department that it could not defend the procedure, then facing an Adarand challenge in the federal courts...

...The stunning reversal in Piscataway did not go unnoticed...

...Such a settlement is not an admission of guilt but rather a rational calculation of the costs and benefits of fighting the lawsuit...

...By February 1995, when Bob Dole asked the Congressional Research Service for a list of all statutes, regulations, programs, and executive orders that extend preferences on account of race, ethnicity, and sex (CRS found more than 16o), Clinton risked becoming irrelevant to the new debate over affirmative action...

...Correspondence (Continued from page 12) the current "good cause" language (which apparently exists only for politicians and judges) for concealed license permits, to "shall issue" in cases of no criminal/mental records...

...Read his lips, if you like, but the better counsel is to recall his record...

...The review explained: "Two wrongs don't make a right...

...That purely discretionary move revealed the activist heart of the Clinton administration...

...The filed complaint usually contains a lurid tale of a vast conspiracy involving the Company, investment bankers, accountants, and anyone else with a deep pocket...

...by Terry Eastland In a speech in Monterey, California, last Labor Day, Bill Clinton declared that he is "against quotas" and "against reverse discrimination...

...Press secretary Michael TERRY EASTLAND is the author of the newly published Ending Affirmative Action: The Case for Colorblind Justice (Basic Books...

...Look, you can redesign the Spectator every six months for all I care—as long as you keep printing Ben Stein's pieces...

...Patrick has been proved right...

...In other words, preferential treatment is not necessarily reverse discrimination...

...PETER S. HEINECKE Palo Alto, California I'm furious at R. K. Mahler for calling Ben Stein's January '96 diary "unctuously guilt-ridden...

...Because we didn't stick with her," as one Clinton aide puts it, "we had to be extra good...

...Yet, as Frisby pointed out, Clinton had not willingly abolished the policy— indeed, he had tried to preserve it...

...Rarely is anyone absolutely unqualified for the opportunity in question...

...We were able to deliver an uncluttered message," says Stephanopoulos...

...The department disingenuously said it was only reading the law as it existed...

...Because affirmative action promises to become a central issue in the presidential race — especially in California, where voters this fall will be asked to approve a ban on government preferences—Clinton may well wind up making claims about affirmative action like those he made in Monterey...

...Not only has he not taken the initiative to limit preferences, but has allowed his administration to expand them...

...There is no reason to think that a second term would be any different...

...Clinton also may try to take credit for the Pentagon's decision last fall to end the Rule of Two...

...Aware he would have to answer to the groups, this aide says, Clinton publicly supported Patrick's position in Piscataway...

...However much he has clouded the issue, Bill Clinton has from the start of his presidency been a strong supporter of race- and sex-based preferences...

...Given that the administration had decided it could not defend the Pentagon's use of the Rule of Two, however, it was a foregone conclusion that the rule would be inadvisable for the rest of the government...

...Even in the staid Defense Department, the agency's civilian managers were told they must consult with higher authority whenever they were on the verge of hiring someone in a senior position "who will not enhance...diversity...

...Rightly anticipating no serious objections from Capitol Hill, the new appointees aggressively pursued their affirmative action agenda, which turned out, not surprisingly, to feature the defense and expansion of race- and sex-based preferences...

...Forbes is definitely not the man for whom most Reagan supporters have been waiting—especially those who joined the GOP because of Reagan's stand on the social issues, foremost among them abortion...

...He has also obstructed, in every way he can, the issuance of concealed weapons permits here in California under current law...

...The Defense Department, for example, under the so-called Rule of Two, was setting aside contracts for minorities whenever two or more minority-owned businesses were bidding for a contract...

...Clinton opted for a strategy, as one aide puts it, designed to "buy time" — he asked senior White House adviser George Stephanopoulos to conduct "an intense, urgent review" of all federal affirmative action programs...

...The GOP-supported securities reform legislation aids these companies by requiring that plaintiffs lawyers allege with specificity the fraud they believe has been committed, encouraging judges to sanction lawyers who file frivolous lawsuits and providing some protection from lawsuits for companies that make good-faith predictions...

...By no stretch of the imagination could any of the appointees to jobs with affirmative action responsibilities be described as a New Democrat...

...When it comes to affir33 mative action, he's not exactly an abolitionist...

...Without the lawsuit, the Pentagon would likely still be using the Rule of Two...

...After Jesse Jackson publicly supported Souljah, Clinton appeared to have earned his New Democrat bona fides...

...Clinton also might try to say that it was his idea to decline extending the Rule of Two to the rest of the government...

...Those four principles did not promise to alter the status quo...

...Bush had vetoed a civil rights bill in 1990 on grounds that it was quota legislation, but signed a new version of the bill the following year...

...According to some White House officials, Clinton only learned about Patrick's action after the fact...

...While allowing that reforms might improve some programs, the review did not call for the elimination of a single one...

...He could not join the Republicans in moving against affirmative action, or he would be damned by the "groups" and perhaps even "primaried" by Jesse Jackson, a recipe for political weakness in 1996...

...In the past the board had drawn lots to break ties, but this time it declined to do so: it simply kept Williams...

...The president duly carried out the only recommendations contained in the review—that he tell agency heads to examine their programs in light of (1) four "basic policy principles" devised during the review and (2) the Supreme Court's decision in the important affirmative action case, Adarand v. Pena...

...The Education Department reversed a Bush administration policy limiting the use of minority-exclusive scholarships...

...In fact, virtually every one of the key civil rights jobs went to lawyers who had worked for one of the liberal civil rights groups, among them the NAACP Legal Defense and Educational Fund, the Hispanic National Bar Association, the Puerto Rican Legal Defense and Educational Fund, the Asian Law Caucus, the National Women's Law Center, the Mexican-American Legal Defense and Educational Fund, and the Women's Rights Project...

...And the Federal Communications Commission set aside 2,000 licenses for portable phones and pagers for firms owned by minorities and women—an affirmative action program that the New York Times called "the biggest" of its kind in decades...

...The new brief that the Justice Department submitted to the Third Circuit argued, in essence, that because there is no Supreme Court holding against the diversity rationale advanced by the school board, then it is a suitable basis upon which an employer may take race or sex into account in making decisions about its workers...

...Certainly, without Adarand on the books, it would be using the rule, a quota-like device that from the start of the administration was never threatened by the president's well-advertised anti-quota principle...

...During a White House press conference just two weeks before the mid-term elections in 1994, Clinton defended Patrick's position in response to a reporter's question...

...34 May 199 6 • The American Spectator advance...

...In essence, the Court made preferences so hard to justify as virtually to put them beyond the reach of government...

...The new brief indicated the Clinton Justice Department's fidelity not simply to judicial interpretation of a statute over the statute itself, but also to a judicial interpretation yet to be made...

...Forbes is a supposed fiscal conservative, but he is also an admitted social liberal, and though Reagan did not pursue the The American Spectator • May 1996 71...

...Continued on page 71) 35 Eastland (Continuedfrompage 35) Despite his clear record in favor of preferential affirmative action, Clinton will no doubt try to portray himself as an affirmative action abolitionist as Election Day draws near...

...But the Court has never held that under Title VII an employer may act on the basis of race or sex in order to ensure workplace diversity...

...Faced with the multi-milliondollar cost of preparing for trial and the inherent unpredictability of the average jury, many executives choose to settle the lawsuit and get on with the business of running their companies...

...SYBIL CARNELL Toronto, Ontario Forbes in Force Please, oh please do not confuse Steve Forbes with Ronald Reagan (About This Month, TAS, March 1996...

...But instead of simply withdrawing from the case, Deval Patrick, the assistant attorney general in charge of civil rights, decided to withdraw and to ask the Third Circuit Court of Appeals for permission (denied a year later) to enter the case as a friend of the court— in support of the school board...

...But because the Court did not abolish preferences outright, it left room for resistance on the part of those who disagreed with the decision...

...I will not vote for anyone, for any office, that actively attempts to abrogate citizens rights as enumerated by the Bill of Rights...

...Those civil rights liberals entered the government at a propitious time, since Democrats then still controlled both elective branches...

...We looked at it as a reward to those who had been out of power for so long...

...On the other hand, given the new politics of affirmative action, Clinton could not simply announce his support for the status quo, though in fact he had supported and sought to strengthen it...

...The judge held that Title VII does not allow employment decisions to be made on the basis of diversity...

...there is no comparison...

...No one denies that cooking books or shipping bricks (two incidents cited by Mr...

...With this "principle," the administration could make words mean whatever it wanted them to mean...

...From the beginning of his administration, Clinton had celebrated diversity-based affirmative action...

...Among other things, the Justice Department defended hiring and promotion quotas in Birmingham and Memphis...

...Indeed, soon after the decision was handed down, Deval Patrick said the administration would not be intimidated by Adarand...

...The president was indeed in a box...

...Well before the Democratic Convention, Clinton went after rap singer Sister Souljah for her calls for violence against whites...

...It was a message that pleased the groups and averted a Jackson primary challenge...

...It was straining to create entirely new law—diversity law...

...He is editor of Forbes MediaCritic and a fellow at the Ethics and Public Policy Center in Washington...

...There is no case that anyone can point to that clearly says [the school board] did violate...Title VII," Patrick explained in congressional testimony...

...The board had decided to lay off a teacher in the business education department at Piscataway High School, and the choice had come down to two equally qualified teachers with equal seniority—Sharon Taxman, who is white, and Debra Williams, who is black...

...More typically, the price of a high-flying technology company's stock drops precipitously after the announcement of lower than expected earnings or a delay in the shipment of a new product...

...Over the years the Supreme Court has rewritten Title VII to permit preferential treatment in order to remedy either an employer's discriminatory practices, societal discrimination, or a manifest racial imbalance in the workplace...

...Clinton kept up the ruse after taking office, lashing out at the "bean counters" in his party who were "playing quota games" by contending he had named too few minorities and women to top administration jobs...

...However, such behavior is not the foundation of the average securities class action lawsuit...

...The president acknowledged "problems" with some federal affirmative action programs, and added: "I've already abolished one that I thought was excessive...

...Stein) are fraudulent and should be punished...

...The original intent of Title VII was to prohibit workplace discrimination of any kind on account of race or sex...

...reverse discrimination is discrimination, and it is wrong...

...But, having angered the civil rights groups when he abandoned the controversial nomination of Lani Guinier, Clinton was of no mind to reverse Patrick...

...At issue in the Adarand decision, meanwhile, was a race-based preference in granting federal highway construction dollars...

...And I was glad to do it...

...In two important post-Adarand cases in the lower courts, the department is defending preferences in contracting...

...It was Clinton who had reserved the Attorney General post for a woman, and who had repeatedly said his cabinet would look like America—in terms of race, ethnicity, and sex...

...Released in July, the 97-page review said that federal programs "worked" and were "fair...

...Under the new laws, crooks and swindlers will still be prosecuted...

...And, in response to the federal appeals court ruling in the Hopwood case, which struck down the affirmative action admissions plan used by the University of Texas Law School, the department has indicated it would give "very serious consideration" to entering the case in behalf of the school in the event of an appeal...

...JOYCE Y. LEITNER @cello.gina.calstate.edu Stein Lines By criticizing the GOP for siding with "the looters and their accountants" over "stockholders," Ben Stein ("Marshal Laws," TAS, March 1996) displays a surprising blindness to the reality of securities litigation...

...In this context, people given points for the color of their skin, country of origin or sex can win out over those lacking the "correct" race, ethnicity, or sex...

...Bob Dole and Rep...

...Inheriting and continuing the case, the Clinton Justice Department prevailed in district court in 1994...

...The administration is also opposing an effort underway in Congress to end preferences in all federal programs...

...In an era of mortifyingly unctuous public voices (start with the Clintons, Phil Donahue, Kathy Lee and Regis), Ben Stein is as conspicuous for his scrupulous avoidance of any such cheap tone as he is for his courageous honesty, his wit, and his genuine sensitivity...

...To justify its decision, the board cited "racial diversity," with Williams's color being necessary to the maintenance of such diversity in the business education unit...

...We looked at it as a reward to those who had been out of power for so long...

...Illegal discrimination includes reverse discrimination...

...Within days, contingency fee lawyers (aided by an "investor" plaintiff who may only hold loo shares in the Company) have sued the Company...

...he would have opposed it, they claim, had he had known about it in "We gave civil rights over to the groups...

...Such a change will benefit both growth companies and their investors...

...He did not tell his audience, however, precisely which program he had "abolished...

...The competition almost always is among relatively qualified people...

...It strains belief, however, to think Clinton did not easily come to Patrick's defense...

...Only one reporter, Michael Frisby of the Wall Street Journal, had the wit to inquire...

...What especially disturbs department officials is the fifth circuit's rejection of diversity as a lawful rationale for racial preferences...

...Then came the Piscataway case...

...Indeed, nothing in the recently enacted securities reform legislation changes the liability of Charles Keating or his ilk for such actions...

...Another principle said that there should be "no quotas," and yet there were quotas left untouched...

...In 1994 Congress imposed the Rule of Two upon the entire government (Clinton did not then object), and for more than sixteen months the administration dawdled over implementing the law...

...But then came the elections, which transformed the political landscape and made possible a new congressional view of a whole raft of issues, affirmative action among them...

...However, plaintiffs lawyers will have to think twice before attempting to extort a settlement from a company which has merely had the misfortune of suffering a downturn in business...

...For the first time, a Clinton administration position on affirmative action made big news, drawing a fair amount of criticism from both Republicans and Democrats...

...This change of mind was unusual, to say the least...

...As it is, the administration continues to use other preferential devices to award contracts...

...In 1992 the Bush Justice Department sued the school board of Piscataway, New Jersey, charging it with racial discrimination in violation of Title VII of the 1964 Civil Rights Act...

...And of course the Clinton administration disagreed with Adarand, having argued in the case in defense of looser, far more preference-friendly doctrine...

...When Congress scrapped the measure overwhelmingly, Clinton had little choice but to sign the repeal legislation...

...Perhaps not, but the statute itself quite clearly prohibits discrimination...

...The Justice Department has concluded that Adarand does not imperil preferences in federal employment or contracting, arguably the two most controversial areas of affirmative action...

...In an interview, Associate Attorney General John Schmitt described Dole-Canady as "a dogmatic bill" for claiming that "any preference based upon race is illegal...

...As for the remaining principle—that there should be "no preferences" for "unqualified individuals"—it defined the problem out of existence...