Point of View: Position Papers

U.S. Education Report on Affirmative Action: “Orwellian Doubletalk”.
April 3, 2003

New York, NY, April 3, 2003. In an extraordinarily sharp and public chastising of a friend, Michael Meyers, Executive Director of the New York Civil Rights Coalition, has accused Assistant U.S. Secretary for Civil Rights Gerald A. Reynolds (head of the U.S. Education Department’s Office for Civil Rights) of “allying with,” to the point of “aiding and abetting” a campaign of massive resistance to very modest affirmative action programs.

The public letter, faxed today to Assistant Secretary Reynolds, is co-authored and co-signed by Meyers and his Assistant John P. Nidiry. In their letter, Meyers and Nidiry criticize “the contents and timing” of the Department of Education’s 35-page report (“Race-Neutral Alternatives in Postsecondary Education: Innovative Approaches to Diversity”, March 2003) that proposes “race-neutral alternatives” to race-based affirmative action programs.

The Department’s report was released last Friday, just three days before the U.S. Supreme Court heard oral arguments in the challenge to the University of Michigan’s inclusionary use of race in its undergraduate and law school admissions programs. “You [Mr. Reynolds] and your department’s report merely parrot the same old tired anti-racial “quota” arguments and cliches that the opponents of affirmative action dredge up to inflame the passions and prejudices of some angry people who feel a sense of entitlement over all others in admissions, who never believe that the admission of others over them to the elite and competitive schools could possibly be for reasons of merit,” the Meyers-Nidiry letter states.

Excerpts from the New York Civil Rights Coalition officials’ open letter to Assistant Secretary Gerald Reynolds follow:

* “We are profoundly disappointed that you’ve chosen…to ally yourself with proponents of ‘race-neutrality’ in education, turning upside down the principles of racial equality and justice. In this regard, your use of words ‘racial preferences’ in the context of institutions’ good-faith efforts at fostering racial integration is plainly Orwellian doubletalk. It is worse than disingenuous–it is sheer racial idiocy dressed up to make a mockery of equal opportunity…”

* “We…find utterly reprehensible and disconcerting your use of scare tactics to pressure institutions to implement ‘race-neutral’ programs. [You] are either wittingly or unwittingly aiding and abetting a campaign of massive resistance underway that is intent on ending the most modest affirmative action programs…”

* “…You know that ours is not a ‘race-neutral’ society. You know…that so-called ‘race neutral’ approaches in admissions are fake…in that they masquerade as programs for the economically disadvantaged–when, in fact, ‘economic disadvantage’ and other such euphemisms are proxies for race–or proffered as better means of achieving racial diversity without the explicit use of race as a ‘plus’ factor.”

* “…Why at this critical time raise and interpose questions about [race-based affirmative action] programs when you know that the Supreme Court would likely settle any such questions this Term? Why have you [now] penned such a poisonous letter calling for leaders in the educational community to ‘work together to look for new solutions?’”

* “…You assert…that [institutions of higher education have accorded] ‘preferences to certain individuals based on their race or ethnicity.’ Never did you mention the underlying legitimate purpose and compelling interest of these institutions in using race as a factor–to eradicate racial exclusion root and branch… Curiously, such admissions factors as legacy preferences and other admissions practices with adverse racial impacts are not assailed by you or the Office for Civil Rights–only those very modest programs designed to include critical, modest numbers of non-whites are questioned and criticized by you.”

* “Perniciously, you…cite the very forces aligned against legal affirmative action programs as a basis for your hasty and obscene retreat from enforcement of federal civil rights laws,…Your report wildly characterizes [a few anti-affirmative action court decisions and state initiatives] as ‘strong legal and policy trends…’ But…no Court has, and no court can, overrule the U.S. Supreme Court, which has allowed for race-based affirmative action…Nor may local laws or states’ referenda hostile to affirmative action override federal civil rights protections–and, surely, you should not invite or encourage such local resistance to affirmative action.”

* “…We are confident that the High Court will affirm race-based affirmative action…[and] when it does, it is our hope that your report will be placed in the dungheap with the other discredited and mischievous treatises about race.”

THE FULL TEXT OF THE OPEN LETTER TO ASSISTANT SECRETARY GERALD REYNOLDS FOLLOWS:

Gerald A. Reynolds, Assistant Secretary
U.S. Department of Education
Office for Civil Rights
400 Maryland Avenue, S.W.
Washington, DC 20202-1100

Dear Secretary Reynolds:

We have read the Office for Civil Rights, U.S. Department of Education?s Report, Race-Neutral Alternatives in Postsecondary Education: Innovative Approaches to Diversity. Quite frankly, we were shocked and appalled by both its contents and the timing of its release.

Three days before the United States Supreme Court heard the two most significant affirmative action cases since its Bakke decision in 1978, the Office for Civil Rights, which you head, had the sheer audacity to issue a polemic in the guise of giving guidance and information to recipients of federal funds about supposed trends in law that question the efficacy of the High Court?s Bakke decision. As you must know, Bakke allows educational institutions that are recipients of federal financial assistance to, in good faith, use race as one of several admissions factors (in choosing from among many candidates) in order to advance racial equity. Moreover, there are ample legal precedents that support the positive use of race to remedy, if not undo, decades of purposeful and systemic societal discrimination against blacks and other people of color.

It cannot be coincidence that your report was issued at the time it was; clearly, it was released as a signal to the Supreme Court, and maybe as a warning to recipients of federal financial assistance, of the alleged and mainly contrived perils of race-based affirmative action efforts. We say ?contrived? because you know, based on your legal background, and on your work at the Center for Educational Opportunity, that the U.S. Supreme Court has endorsed the use of race, in several situations, as a methodology to overcome entrenched patterns of racial segregation and outright racial discrimination.

The use of race for desegregation, and its affirmative use for inclusionary purposes as a way of achieving racial diversity in admissions, have been constitutional and perfectly acceptable practices, up to now when, as you say, lower court decisions and state initiatives hostile to affirmative action have been questioning the viability of the Bakke decision and the affirmative use of race in college, university, and professional school admissions. It is in this context, only three days before the United States Supreme Court heard the challenges to the University of Michigan’s affirmative action programs, your department, with your implicit and explicit endorsement, issued a report that, in effect, sided with the forces aligned against affirmative action?a report replete with such dastardly code words as “racial preferences.”

Why, we must ask, the alacrity in issuing 35 pages of so-called “race-neutral alternatives” to race-specific programs that you knew were not only under intense scrutiny but also widely in use by institutions of higher education (not to mention the military and private sector)? Why at this critical time raise and interpose questions about these programs’ legality when you knew that the Supreme Court would likely settle any such questions this Term? Why have you penned such a poisonous letter calling for leaders in the educational community to “work together to look for new solutions”?

As head of the Office for Civil Rights you have a duty?indeed, you have sworn?to uphold and to enforce the federal civil rights laws. We believe that that duty entails the faithful execution of the civil rights laws, not to pander to the forces and winds of political expediency and the errant voices that seek to impede if not halt programs of racial inclusiveness, in the guise of pursuing so-called “color-blind” policies in higher education. In this connection, your introductory statement in the Education Department’s report is itself an inversion of the rhetoric about equal opportunity. You assert, for instance, that in pursuing “diversity” educational and other institutions have misguidedly, in your view, given “preferences to certain individuals based on their race or ethnicity.” Never did you mention the underlying legitimate purpose and compelling interest for these institutions in using race as a factor to eradicate racial exclusion root and branch from their institutions. Curiously, such admissions factors as legacy preferences and other admissions practices with adverse racial impacts are not assailed by you or the Office for Civil Rights; only those very modest programs designed to include critical, modest numbers of non-whites are questioned and criticized by you.

We are profoundly disappointed that you’ve come up short in fulfilling your promise and following through on your vow to enforce federal civil rights laws. You have chosen instead to ally yourself with proponents of “race-neutrality” in education, turning upside down the principles of racial equality and justice. In this regard, your use of the words “racial preferences” in the context of institutions’ good-faith efforts at fostering racial integration is plainly Orwellian doubletalk. It is worse than disingenuous?it is sheer racial idiocy dressed up to make a mockery of equal opportunity.

We also find utterly reprehensible and disconcerting your use of scare tactics to pressure institutions to implement “race-neutral” programs. Mr. Secretary, you are either wittingly or unwittingly aiding and abetting a campaign of massive resistance underway that is intent on ending the most modest affirmative action programs. You are doing so with the implausible purpose of helping to “create a positive climate in which race-neutral alternatives can be seriously considered.”

In truth, you know that ours is not a “race-neutral” society. You know, as well, that so-called “race-neutral” approaches in admissions to higher education institutions are fake in that they masquerade as programs for the economically disadvantaged when, in fact, “economic disadvantage” and other such euphemisms are proxies for race or proffered as better means of achieving racial diversity without the explicit use of race as a “plus” factor. We do not think it is possible that you can’t decipher the difference between an inclusionary and an exclusionary use of race to fulfill the purposes of the Fourteenth Amendment and Title VI of the 1964 Civil Rights Act.

You and your department’s report merely parrot the same old tired anti-racial “quota” arguments and cliches that the opponents of affirmative action dredge up to inflame the passions and prejudices of some angry people who feel a sense of entitlement over all others in admissions, who never believe that the admission of others over them to the elite and competitive schools could possibly be for reasons of merit. In empowering rather than confronting such pathetically errant thinking you propose, falsely, that “race-neutral alternatives” are now indicated, along with supposed “innovative thinking” about equal opportunity efforts. In so stating you nevertheless offer no innovative thinking at all only platitudes and the recycled spit of white supremacy which would ignore entrenched patterns of racial privilege for whites in admissions, to the detriment of individual minority youths who have demonstrated to the satisfaction of admissions officers their own qualifications and enormous potential for success in both higher education and professional careers.

You and the “Office for Civil Rights” have merely repeated the canards and urged the chasing of red herrings in your pursuit of “equal opportunity” instead of affirmative action. Affirmative action, race-based affirmative action, was created to promote and achieve equal opportunity, to level the playing field for minorities who were, because of their race, disadvantaged (not always economically) and hobbled by the persistent habits of institutions that overlooked or excluded qualified, meritorious people of color. Societal-based racial discrimination made such inclusionary efforts necessary in the first instance.

Significantly, your report has prematurely stamped “race-neutral” admissions policies “successful,” even while admitting it’s too early to tell. Thus, your report on viable alternatives is as brash as it is ironic. The evidence relied upon is narrow, even as it challenges programs that have, in fact, posted successes in bringing into the academy critical numbers of minority students. The Department of Education has taken three university systems in three states to laud “promising initial results” of “race-neutral” programs, ignoring that “race-neutral” percentage programs in two of those states, Florida and Texas, actually feed on the racially-segregated primary and secondary school systems in order to facilitate minority representation in their public universities. Likewise, claims such as, “If postsecondary institutions aggressively implement race-neutral policies and maintain diversity, the contentious atmosphere could be replaced by constructive efforts to resolve the root causes of inequality,” are hardly evidence. To equate flimsy and pious hypotheticals with firm evidentiary support is recklessly irresponsible.

Perniciously, you and your department’s report cite the very forces aligned against legal affirmative action programs as a basis for your hasty and obscene retreat from enforcement of federal civil rights laws, enforcement that should include traditional affirmative action tools:

“In several states, courts have struck down racial preferences that have been used by educational institutions. In others, voters have passed referenda directing that state institutions can neither discriminate against, nor grant preferential treatment toward, persons on the basis of race.”

Your report wildly characterizes these developments as “strong legal and policy trends.” But the ban on “racial preferences” in a few jurisdictions from court decisions and through two voter initiatives do not constitute any overwhelming legal or policy trends that require educational institutions to seek out new or “alternative” solutions that is an overstatement of the facts and an oversimplification of the issues at hand. The court decisions that have “struck down racial preferences” were fact-specific. No court has, and no court can, overrule the U.S. Supreme Court, which has allowed for race-based affirmative action. Nor may local laws or states’ referenda hostile to affirmative action override federal civil rights protections?and, surely, you should not invite or encourage such local resistance to affirmative action.

In the context of university/college admissions, Bakke is still good law. There, Justice Powell opined, “In an admissions program, race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file,” University of California Regents v. Bakke, 438 U.S. 265, (1978). In this country, and notably in the field of race, we have a long and ugly history of local hostility to federal civil rights enforcement. In the years before it became fashionable on the part of government officials like yourself to invert the rhetoric, we in the civil rights community relied on federal civil rights agencies, and the federal courts, to require localities to meet their constitutional obligations, and to observe the inclusionary purposes of Title VI of the 1964 Civil Rights Act. You have broken with that glorious tradition of steadfast and enlightened federal leadership on civil rights enforcement.

In keeping with your promise, and oath, we would have thought that you would keep faith with the Office for Civil Rights’ historic and unique responsibilities to ensure that recipients of federal assistance do not default in their obligations for racial inclusiveness, and equity, even in the face of stiff opposition. Instead, you have chosen to shirk your responsibilities with the inappropriate and shameless invoking of the words of Dr. Martin L. King, Jr., a champion of racial equity and social justice, who objected to racial bigotry, and who, as we know that you know, was a strong supporter of affirmative action efforts, not an opponent of such programs.

We are confident that the High Court will affirm race-based affirmative action as a necessary, useful, and constitutionally-supportable tool for promoting equal opportunity. When it does, it is our hope that your report will be placed in the dungheap with the other discredited and mischievous treatises about race.

Sincerely yours,

Michael Meyers
Executive Director

John P. Nidiry
Assistant to Executive Director