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President George W. Bush didn’t talk much about affirmative action when he ran for office. Three months into his presidency, he is just as silent on the politically charged issue. Now, the administration is being forced to deal with the issue. Ready or not. Last month’s decision by the Supreme Court to take up the landmark Adarand racial preferences case again, as well as a federal judge’s ruling to strike down the University of Michigan Law School’s admissions program, have put affirmative action front and center. Conservatives would love to see the administration reverse Clinton-era stances on busing, desegregation, and voting rights — and want the administration to start dismantling federal affirmative action programs. That might not become a reality any time soon, however. The movement to end affirmative action could find itself relying on the courts during the Bush administration just as much as it did during the Clinton years. “At first blush, the outlook for the Bush administration to advocate an end to affirmative action and racial classifications and preferences doesn’t look very bright,” says Edward Blum, director of legal affairs for the American Civil Rights Institute, the group founded by anti-affirmative action crusader Ward Connerly. “But my sense is that dynamics and the political ramifications are so enormous that the Bush political people would rather skirt the issue than take it head-on.” Roger Clegg, vice president and general counsel for the anti-affirmative action Center for Equal Opportunity (and columnist for Legal Times), finds Bush’s vagueness on the issue a little worrisome. “During the campaign, Bush used the phrase ‘affirmative access’ — but it’s unclear what that means,” Clegg says. “My sense is this is not an issue that [Bush] is comfortable with.” Even defenders of affirmative action think that it is unlikely that Bush will try to end affirmative action. “I think it would be way out of step with what the private sector is doing. That would be very surprising to me,” says Georgina Verdugo, executive director of the pro-affirmative action Americans for a Fair Chance. If Bush did so, Verdugo says, “it would have a devastating impact. It would stand to eliminate a lot of opportunities for people.” Controversy over affirmative action ebbs and flows. The policy last came under heavy fire in 1995 and 1996, when Republicans hoping to run for the presidency hit President Clinton with the issue. The Supreme Court also first ruled in Adarand Constructors Inc. v. Pena in 1995, saying federal affirmative action programs must meet a “strict scrutiny” test to pass constitutional muster. That case is now back before the high court. After Adarand, Clinton retained most of the existing affirmative action programs, many in a modified form. Liberal groups are committed to protecting those programs, and conservatives want them eliminated. Among the programs on the top of the conservatives’ hit list are many of the contracting and hiring initiatives. Among them are: � The 8(a) program, which sets aside government contracts for small companies owned by socially and economically disadvantaged individuals. To qualify for a set-aside contract, a company owner must state that he or she is a member of a minority racial or ethnic group, or that he or she has experienced discrimination because of a distinguishing characteristic such as race or a handicap. � The Small Disadvantaged Business program, which adjusts bid prices to make it easier for certified companies to win government contracts against larger or nondisadvantaged competitors. � The Disadvantaged Business Enterprise program at the Department of Transportation, which sets a goal that 10 percent of federal transportation dollars be given to DBEs. DBEs are certified based on social and economic disadvantage. � The Department of Labor’s Office of Federal Contract Compliance requires government contractors of a certain size to implement written affirmative action programs, including flexible goals to meet the objective of hiring and keeping women and minorities. The office conducts compliance evaluations and can ask companies to provide back pay or to make promotions or hires if the office finds a pattern of discrimination. “What affirmative action [means] is that positive steps must be taken to ensure equal employment opportunity for traditionally disadvantaged groups,” the office’s Web site reads. It’s these programs in the government that supporters of affirmative action say are necessary to battle discrimination and a lack of access for minorities. “Affirmative action programs are tools to fully integrate us into society,” says Hilary Shelton, director of the National Association for the Advancement of Colored People’s Washington bureau. “You use the tools of flexible goals and timetables. Affirmative action is a very conservative remedy to the history of discrimination in our country.” Simultaneously, these same programs have drawn the ire of conservative think tanks and legal foundations, which have funded mountains of legal challenges to these and other affirmative action programs. They have been successful in many cases on the state and local level. And they want the federal programs eliminated. “The demand that federal contractors submit affirmative action plans has amounted to, in effect, a demand for quotas in hiring,” says Abigail Thernstrom, a conservative scholar and Republican member of the U.S. Commission on Civil Rights. “When you say a group is underrepresented, what is the standard, if it is not proportional ethnic and racial representation?” Many conservatives are willing to give Bush the benefit of the doubt. He has said many times he does not support quotas or numerical standards, but instead wants equal access for everyone, an argument that could be taken from the playbook of those aligned against affirmative action. Many of his nominees are anti-affirmative action. Conservatives are hoping he will fill the key remaining spots — the head of the Office of Federal Contract Compliance, and the Department of Education’s Civil Rights Division — with similarly minded officials. “It’s still very early in the administration,” says Sharon Browne, principal attorney of the conservative Pacific Legal Foundation. “I would not take the fact that there hasn’t been any action as the trend.” But some conservative groups aren’t convinced that Bush is merely getting a slow start on affirmative action. They point to the Bush Justice Department’s handling of a Charlotte, N.C., school desegregation case. The Center for Equal Opportunity and the American Civil Rights Institute asked the Bush administration to withdraw a Clinton-era amicus brief supporting busing and preferences. The case was argued before the 4th U.S. Circuit Court of Appeals in late February. The Justice Department let the amicus brief stand. Conservative groups also point to the fact that Bush steered clear of affirmative action debates in Texas, and signed into law a bill that encouraged state agencies to contract with businesses owned by minorities. Adarand will force the administration to deal with this issue in some way. Both sides are waiting to see what Bush and Attorney General John Ashcroft will do. For conservatives, the best-case scenario involves another ruling from the Supreme Court that would further limit affirmative action programs. Such a decision, they believe, would provide Bush with the political coverage to rewrite federal affirmative action policy. “I think the administration’s first instincts will be to keep the entire issue as far away from the president as they possibly can,” says Michael Greve, head of the Federalism Project at the American Enterprise Institute and a founder of the Center for Individual Rights. “Whatever movement will come, it will come from the Supreme Court.”

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