TRB from Washington

Senate Republicans have blocked Bill Lann Lee's nomination to be assistant attorney general for Civil Rights on the grounds that his views are "out of the mainstream." Lee's editorial supporters, including The New York Times, denounce this as a "gross misrepresentation," and before examining his writings, I was prepared to believe them. But based on Lee's testimony to the Senate Judiciary Committee and on his record as counsel to the naacp Legal Defense Fund, it's hard to avoid the conclusion that Lee represents the least nuanced tendencies of liberal racialism. For those of us who still hope President Clinton can stake out a tough-minded middle ground in the civil-rights debate, Lee's repudiation is a golden opportunity.

In his confirmation hearings, Lee was questioned about a law review article, "A Right to an Integrated Education," that was published in 1982. "The simple response to the `white flight' objection," Lee wrote, "is that, as required by settled law, popular hostility to desegregation is not a proper objection to the vindication of constitutional rights." Lee's enthusiasm, in the 1980s, for a vision of court-ordered busing that the Supreme Court and the country have come to reject in the 1990s shouldn't, by itself, be disqualifying. In the article, however, Lee reveals his views on the most important civil-rights question of this decade: Are neutral laws and standards that have unintended "disparate impact" on some minority groups a form of impermissible discrimination? And Lee's views on this question are distressing.

In his article, he questions the constitutionality of minimum competency tests, which have been endorsed by the Clinton administration and by many states. "These tests usually have a severe adverse impact on minority groups," Lee argued, noting that "the use of such tests has been enjoined on the grounds that they ... are fundamentally unfair and violate due process." And Lee has put these views into practice. The Los Angeles office of the naacp Legal Defense Fund, which Lee heads, joined other civil-rights groups in filing a complaint with the Department of Education claiming that the decline in minority admissions at the University of California since the Regents' decision to end racial preferences was a form of illegal discrimination--because grades and test scores have a disparate impact on minorities. Taken to its logical extreme, this position would mean that all universities would have to select their students randomly from a list of minimally qualified applicants.

Even more troubling is Lee's view, which he reaffirmed at his hearings, that Proposition 209, the California Civil Rights Initiative, is unconstitutional. In 1982, Lee had signed a Supreme Court brief arguing that a Washington state initiative prohibiting forced busing was unconstitutional, because it changed the political process to make it harder for minorities to achieve their political goals. The Supreme Court narrowly adopted Lee's argument in 1982, and the Legal Defense Fund made a similar argument against the constitutionality of Proposition 209 last summer. As long as the 1982 case remains on the books, this is an unconvincing argument, but not an absurd one. In another brief, the Legal Defense Fund went further, however, arguing that Proposition 209, which forbids racial preferences, is illegal because, in the Legal Defense Fund's view, the Constitution and federal civil-rights laws essentially require racial preferences. This view has no support in current law, and no one who holds it should head the Civil Rights division.

Finally, there is the question of when affirmative action is constitutionally permitted. In response to a question from Senator John Ashcroft, a Missouri Republican, Lee suggested that the Small Business Administration's set-asides for minority contractors "comply with the Supreme Court's holding in Adarand," especially because the SBA proposes to "improve the program by expanding the definition of disadvantaged persons." Lee's reading of Adarand is tendentious and implausible. There is no evidence of discrimination in federal contracting against many of the minority groups on the SBA's list, which includes Aleuts as well as African Americans. In the 1980s, the imprecision of the federal list led Drew Days, the former solicitor general for the Clinton administration, to confess that the 8(a) program was constitutionally vulnerable, long before Adarand changed the constitutional landscape, and before the Clinton administration proposed to make things worse by expanding set-asides for white women. When asked for evidence of discrimination in federal procurement, Lee replied that minority-owned businesses "continue to be underutilized in federal procurement programs," a claim that is untrue for many groups on the list.

But this tired argument is consistent with Lee's general ambivalence about the requirement that discrimination must be intentional to be unconstitutional: in Plyler v. Doe, a 1982 Supreme Court case, he filed a brief challenging the exclusion of the children of undocumented aliens from public schools in Texas, not because the sins of fathers shouldn't be visited on children, but because the Texas initiative had a "discriminatory impact" on the children of Asians and Mexicans.

By nominating an unreconstructed civil-rights activist, President Clinton has permitted the Republicans to continue dodging the hard issues in the debate about race. Many principled defenders of color blindness are increasingly uncomfortable with its practical consequences, such as the virtual evaporation of the pool of black students who can be admitted to ucla and Berkeley law schools. By attacking Lee's extremism, the Republicans can divert attention from their own.

There is, however, a middle ground on civil rights; and perhaps it looks something like the position sketched by former Solicitor General Walter Dellinger in his brief for the Clinton administration in the New Jersey affirmative-action case that the Supreme Court will hear in January. Race-based firing is impermissible, Dellinger argued, because its burdens are too intrusive. But nonremedial racial preferences may be permissible in very limited circumstances, such as public university admissions and inner-city police assignments, where the burdens are diffuse and the social benefits are compelling. But to stake out his middle ground, Dellinger had to fight the strenuous objections of Deval Patrick, the outgoing civil-rights chief, whose uncompromising racialism did much to harm the liberal cause. By refusing to confirm Bill Lann Lee, Senate Republicans have given President Clinton one last chance to avoid repeating this mistake.