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Affirmative Action Rules Are Revised

By Ann Devroy
Washington Post Staff Writer
Thursday, May 23 1996; Page A01

Struggling to preserve some elements of affirmative action in the face of skeptical federal courts, the Clinton administration yesterday issued new rules on race-based government contracting and prepared to support an appeal to the Supreme Court to allow universities to continue to consider race in admitting students.

Both steps are billed by the White House as elements of President Clinton's pledge to "mend" rather than end affirmative action, the remedy provided minorities and women by federal and state governments and other institutions to redress past discrimination.

Affirmative action remains a highly charged political issue, and one on which Clinton disagrees with Senate Majority Leader Robert J. Dole (R-Kan.), the presumptive Republican nominee. Dole introduced legislation last year to end all federal racial and gender preferences, although he has had a history of supporting them. Critics of affirmative action say that while Clinton says he opposes quotas, he is trying to preserve parts of the program that amount to quotas.

A Texas university admissions case is the forum for the latest administration move. A federal appeals court in March struck down an admissions program at the University of Texas law school and declared that diversity was not an important enough goal to justify making race a factor in admissions.

The Justice Department on Friday is scheduled to file a brief supporting efforts by the state of Texas and civil rights activists nationwide to overturn that ruling, the first of its kind by a federal court, at the Supreme Court.

The Clinton administration will argue, officials said, that racial diversity in an educational setting serves a compelling national interest and as such is allowable.

White students who sued maintained that the Constitution prohibits discrimination on the basis of race and that the goal of diversity is not a compelling enough standard to sanction discrimination.

The Texas program evaluated minorities and whites seeking admission on two different tracks, with minorities subject to lower standards for tests and academic records. That process has since been altered to use race as only one of several personal factors to be considered.

Critics of Clinton's affirmative action policies argue that the Justice Department entering the case – since it is not compelled to take a position – is evidence on its face that what Clinton is doing is not trying to steer a middle course of "fixing" affirmative action but fighting at every opportunity to preserve as much of it as he can.

Terry Eastland, a former Reagan Justice Department official who has just published a new book on affirmative action, said yesterday that the proposition that Clinton is trying to "steer a middle course is absolutely untrue. It has never been true."

He said that after adverse court rulings and a growing public resentment of affirmative action, the White House has tried to "defend the status quo" in a way that would appease liberals while not alienating the majority of Americans who equate such programs with quotas.

The new procurement rules announced by the Justice Department yesterday, which will be published in the Federal Register today for comment and review, would impose some new limits on race-based contracting and require proof of discrimination before such contracts can be awarded.

The rules would disallow all strict set-aside provisions that designate specific numbers of minority contracts in a program. Programs now common in government that give explicit preferences in contract bidding for reasons such as minority ownership would operate under a new set of limits.

Under those limits, "race-conscious" procurement would be allowed only after a "disparity study" finds credible evidence of discrimination.

The government would also establish for the first time a certification process to ensure companies seeking government business as minority-owned are owned by minorities. Currently companies self-certify.

The Clinton administration had, in effect, no choice but to revise procurement and government employment affirmative action rules after a far-reaching Supreme Court ruling last year, Adarand v. Pena. The court said affirmative action programs must meet a standard of "strict scrutiny" that requires contracts awarded on the basis of race to serve a "compelling government interest" and be narrowly constructed to redress identifiable past discrimination.

The federal government awarded more than $11 billion in contracts to minority firms in the last fiscal year, although some of that was on straight competitive bidding.

Conservative legal scholars have argued this spring that when state affirmative action programs ran into legal troubles, many turned to diversity studies that produced "statistics on demand" to prove discrimination and now the Clinton administration, searching for a way out of abandoning affirmative action, is relying on the same device.

© Copyright 1996 The Washington Post Company

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