Wampum

The camel's nose under the tent?

In the 1958 Orson Welles classic, A Touch of Evil, officer Charlton Heston, while using the blind store-owner's phone, spots the sign on the wall, "If you're mean enough to steal from the blind, help yourself." I imagine George W. Bush, with his continuous War on the Poor and Disadvantaged, has that saying in a gilded frame behind his desk in the Oval Office.

So when I read Dana Milbank’s May 20th story buried on page A17 of the Washington Post regarding a new Administration attack on affirmative action, I wasn’t particularly surprised. I also initially agreed with Milbank that it most likely was an attempt at a clarification of the "no-quota" policy put forth in the Administration's briefs filed in the University of Michigan affirmative action case last fall.

Earlier this year, when the White House weighed in on the landmark affirmative action case before the Supreme Court, President Bush said he opposed racial quotas but left unanswered the crucial question of whether race can be a factor in government programs.

The administration has now given an answer to that question -- not in a legal brief but in a little-noticed statement on energy policy, of all things. At the end of a four-page official "Statement of Administration Policy" on energy legislation, the administration included two sentences that, in the view of both supporters and opponents of affirmative action, make clear that government cannot consider racial diversity in admissions, grants and the like.

The SAP in question specifically states,

Several provisions including sections 931, 987, and 1005, provide certain preferences based on the recipient’s race. These provisions should be revised to apply only to the extent consistent with affording equal protection of the laws, as required by the Due Process Clause of the Fifth Amendment to the Constitution.

I pulled the offending sections from the bill originally, but Milbank gives a good synopsis,

Section 931, relating to small business, said at least $5 million of grants "shall be made available for grants to Historically Black Colleges and Universities, Tribal Colleges, and Hispanic-Serving Institutions." Section 987 calls for national laboratories to "increase the participation of small business concerns, including socially and economically disadvantaged small business concerns." Section 1005 says science education programs should "give priority to activities that are designed to encourage students from underrepresented groups to pursue scientific and technical careers."

That the Administration would single out two of these three sections is more perplexing than it is alarming. Section 1005, like 931, also calls for the increased participation of Historically Black Colleges and Universities, Tribal Colleges and Hispanic-Serving Institutions in DOE activities. This approach by the Administration is almost incomprehensible, as they appear to be arguing that these institutions are in fact “persons”, and that the racial make-up of their student populations imbues the institution with a particular racial identity. Since the Supreme Court voted just last week that tribal governments are not “persons”, arguing that tribal colleges are such seems an exercise in futility for the Administration. In addition, Section 1005 does not specify race as the distinguishing factor in “underrepresented groups”; women are also underrepresented in scientific and technical fields, yet the Administration in its SAP unequivocally singles out race as a determining factor.

These assaults on minority institutions, while blatant, may be all bark and no real bite. That may be the point: While focusing on the obvious “racial-defined” character of these institutions, the Administration is throwing a sop to their rabid anti-affirmative action attack dogs. But if this tact of assailing minority institutions as a means of undermining affirmative action was destined to fail, what was the purpose of the Administration choosing the Energy Bill to signal such a major policy change?

During the Watergate scandal, Deep Throat instructed Woodward and Berstein to “follow the money”. Sections 931 and 1005 pertain to a few million dollars for renewable energy and education partnerships, a relatively small amount when viewed in terms of the entire bill. The big money in any government program has always been contracted products and services. And while the amount appropriated for Section 987 also appears on its face to be rather small, the wider implications may be tremendous.

The energy bill before Congress, like much of the legislation since the late 1970s, includes language which seeks to “increase the participation of small business concerns, including socially and economically disadvantaged small business concerns, in procurement, collaborative research, technology licensing, and technology transfer activities conducted by the National Laboratory or single-purpose research facility.” However, the language used in this section, specifically “socially and economically disadvantaged small business concerns” is not haphazard; it arises from to Section 8(a) of the Small Business Act (15 U.S.C. 637 [a]), and has strict definitions for what constitutes a socially and economically disadvantaged small business concern, often known as a “Disadvantaged Business Enterprise” (DBE) program.

A socially and economically disadvantaged SBC is one that is at least 51 percent owned by an Indian tribe or a native Hawaiian organization or one or more socially and economically disadvantaged individuals; and whose management and daily business operations are controlled by one or more socially and economically disadvantaged individuals.

Socially and Economically Disadvantaged Individual: A member of any of the following groups: Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Subcontinent-Asian Americans, other groups designated from time to time by SBA to be socially disadvantaged, or any other individual found to be socially and economically disadvantaged by SBA.

The Transportation Department’s DBE program has been under attack by anti-affirmative action conservatives for more than a decade. The long sordid history of the Adarand case points to such. The fervor with which the right-wing media attacked the Bush Administration briefs filed by Solicitor General and overall conservative darling Ted Olson in the most recent chapter of the Adarand affair, back in the fall of 2001 makes it fairly clear that even with the Supreme Court’s decision against Adarand and upholding the current DBE program as a constitutional affirmative action program, they have not surrendered the war to dismantle all such government programs.

So, with the inclusion of language objecting to DBE-like programs in the current energy bill, is the Administration now signaling to its “race-neutral” base that they are willing to join the crusade to rid the lucrative government contracting business of all affirmative action programs?

Milbank points out that if the Administration is attempting some major race-neutral policy change, it is behaving erratically, as its recent Transportation bill included language affirming the DBE program. That may be more an issue political expediency; the Senate committee overseeing the transportation bill is chaired by John McCain, an outspoken critic of past attempts to dismantle the DBE program. Bush may be using the less recalcitrant Energy Committee to test the waters. Whatever he is doing, conservatives have taken notice; Roger Clegg of the Center for Equal Opportunity and Edward Blum of the American Civil Rights Institute, both affirmative action opponents, were interviewed by Milbank and are closely watching the reaction by Congress to the Administrations objections.

I suggest supporters of affirmative action would do well to do so too.

Posted by MB at May 27, 2003 09:58 AM | TrackBack