To evaluate the Bush Administration's record in opposing preferential treatment on the basis of race, ethnicity, or sex--"affirmative action" (1)--we have to look not only at what it did, but also at what it needed to do. That is, we must first look at how current law requires, encourages, or allows such affirmative discrimination and what steps, ideally, need to be taken to change this situation. After establishing that baseline, we can then measure how close the Bush Administration came to fulfilling this ideal. We cannot judge how far the Administration advanced the ball, particularly in the courts, without knowing where the ball was in the first place.
Unfortunately, the Administration's record is, in short, decidedly mixed. As a general matter, the Bush Administration's record in this area improved on the Clinton Administration's. The latter aggressively encouraged the use of racial preferences; the former's improvement was not so much that it discouraged such use, but that it did nothing. There were some exceptions: Sometimes the Bush Administration continued to accept preferences, and sometimes it actively opposed them. But its savings and sins were principally of omission, not commission.
The Administration said very little about this subject, and when it did say anything, it was because its hand had been forced, such as when the University of Michigan cases, Gratz v. Bollinger (2) and Grutter v. Bollinger, (3) were before the Supreme Court and the topic was unavoidable. It took no position on the Michigan Civil Rights Initiative (4) (which proposed to overturn the Court's decision in Grutter), and it managed to avoid revising the Department of Education's guidelines and regulations in this area, even after the Court had decided Grutter and Gratz. Occasionally the Administration would comment that a pending bill containing a racial preference raised constitutional problems, (5) but it never proposed legislation that would have cut back on such preferences.
Indeed, if the Administration could have avoided saying anything at all about the subject of racial preferences--if it could have simply made the issue go away--it would have done so eagerly. This is probably because, on the one hand, its lawyers and policy advisers thought such discrimination difficult or impossible to defend, but its political experts were reluctant to court attacks from race-baiting Democrats and the civil rights establishment.
The use of racial preferences is concentrated in four areas: voting, government contracting, education, and employment. There are some exceptions (for example, the use of such preferences in appointments to state boards and some aspects of health care), but they are relatively minor.
Voting is a special case. The Voting Rights Act, which is used to require racially gerrymandered districts, (6) has federalized the issue. As a result, there is nothing that the States can do about it. Realistically there was and is nothing to be done through the political branches either. Congress overwhelmingly reauthorized these provisions in 2006, (7) and President Bush signed the bill. (8) Thus, all that can be done for now is to challenge the Act's constitutionality. (9)
The rest of this Essay proceeds seriatim through the other three areas. For each, the status of the law varies, and so do the roles of the federal government, state and local governments, and the private sector. In what follows, the Essay will interweave commentary on what the Bush Administration did along with discussion of what needed to be done (and, alas, still needs to be done).
I. GOVERNMENT CONTRACTING
The case law regarding government contracting is very favorable to those challenging state and local racial preferences. (10) In 2004, for example, the U.S. District Court for the Southern District of Florida not only struck down a program in Miami, but also …