Posted on 01/17/2003 4:09:44 PM PST by TLBSHOW
White House Brief Stops Short of Bush Speech
January 17, 2003
Folks, I really don't relish the next words, sentences, and paragraphs, which you will read on this page or hear from my mouth in the audio links below. There is some angst today in the conservative legal community over the University of Michigan case and the brief filed by the Bush administration late Thursday night near the midnight deadline, and how this brief differs in scope from the president's amazing speech.
Now, the mainstream press, of course, is late to pick up on this. We have several wire reports, which I read on Friday's program that lead with lines like, "President Bush is siding with white students in the most sweeping affirmative action case…" And they don't think they're biased? President Bush is siding with white students? No, President Bush is siding with the Constitution. It's the Fourteenth Amendment, which is being largely ignored by those in the mainstream press. He's siding with the Constitution, not siding with white students or white people or white anybody.
That being said, our legal advisors here at the EIB Network and the Limbaugh Institute have read the brief filed by the Bush administration. We've studied it, and this position is not nearly as sweeping as that taken in the president's speech. In short, he does support overturning the policy of Michigan, but stops there and goes no further. The administration's brief contends that the admissions policy at Michigan does violate the Constitution, but the brief does not say that the use of race violates the Constitution. And that's the key.
Race-based anything violates the Constitution. No such discrimination is allowed, but the brief doesn't attack that, it only attacks the specific admissions policy at the University of Michigan. The Constitution does not outlaw all forms of discrimination, but it does prohibit discrimination based on race, and in some cases it discriminates or prohibits discrimination based on gender and religion.
The brief does not challenge racial preferences in college admissions. It accepts, in fact, the fact that race-based diversity is a constitutionally proper goal. So in the brief, as opposed to the speech the president made, the administration is not opposed to the goal, but merely Michigan's practice by which it was achieved.
Here is the upshot: The president's compelling speech certainly suggested he was taking on the whole issue of race-based preferences. This is why everybody was so excited. This is why you want a conservative in the White House, to stop a mess like affirmative action. It pits groups of people against each other and it stigmatizes people who benefit from it. There's nothing positive about it. The president's opponents predictably in their criticism certainly suggested that he was taking on the issue of race-based preferences.
After hearing the president speak, and from that reaction from the left, the press, pundits and all the rest of us concluded that Bush was challenging racial preferences in college admissions. But his administration's brief - I'm sorry to say, folks - doesn't do that.
Listen to Rush...
(…compare media reports of the president's position, with the actual brief) (…continue the legal analysis of the brief filed by the White House)
Read the Articles...
(AP: Bush Brief on Affirmative Action Due) (USA Today: White House to oppose Michigan policy of race-based admissions) (Reuters: Bush Lawyers Urge Top Court to Back White Students)
Read the Fourteenth Amendment to the Constitution...
But don't you think that is what the court would do anyway?
Isn't the public view of this issue going to have to be changed before the court will reject it's previous rulings?
We are discussing the brief and whether or not Rush was characterizing it correctly. We are not discussing your interpretation of my motivations, of which you have NO idea. I do not discuss YOUR motivations, and I would appreciate the same courtesy.
I want to know why Rush, who is supposed to be LOGICAL, cannot discuss a legal interpretation without ranting. I am quite able to do so, and I don't see why he cannot.
I do not pretend to be an attorney or any sort of a legal expert. I do understand the nuances of Supreme Court decorum, having paid attention over the last few years.
Are you telling me that Ted Olsen, Solicitor General, was overruled by underlings? Or are you inferring that President Bush, who is not an attorney, overruled Ted Olsen on constitutional law? I do not understand your comment, and would appreciate an explanation.
Actually, Plessy v. Furgeson (1896) did, and the 14th Amendment... and the Bill of Rights... Anyway, Brown is a great American statement, the first major correction of the vile Plessy that legalized segregation (in rail cars, the specific subject). To my mind, the ultimate statement of Plessy came when Nat King Cole took a dive into a casino swimming pool in Vegas. It was against policy. In fact, most black entertainers weren’t allowed to stay at the casinos where they performed. Cole’s swim so offended the patrons that the hotel drained the pool and refilled it with "clean" water.
It’s easy to forget what segregation meant.
When the modern conservative reads Brown, he will find nothing alien. The departure is where Brown was next taken, to busing, to affirmative action, to minority preferences in public contracts, etc. Here is the origin of it all, and the danger, in Brown: In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on "those qualities which are incapable of objective measurement but which make for greatness in a law school." In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: ". . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession." [347 U.S. 483, 494] Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:
We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.
Anyone see the Michigan preferences system in that? I sure don’t, although I see how it was concieved. By admitting that segregation is wrong despite equality in facilities and services, the Court infered that inequality in facilities and services constituted segregation. With that inference, such things as busing and affirmative action were adopted as a means of creating equality of condition. "Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system."
It is wrong. We cannot assume that the Court meant anything further than its statement on segregation. The Court did not demand that schools be constituted of mixed races. The Court said that exposure to a multiplicity of views is a good thing. It affirmed McLaurin v Oklahoma State Regents that "intangible considerations" assist a student to excel where those "considerations" might not be available (i.e. in segregated, or, we can infer, schools made up of students of a single race).
Yet, we cannot assume that the Court meant that schools must have racially integrated student bodies. We can only understand that the Court stated that “negroes” would have better education were they exposed to “white” schools. The Court never stated that the law required that “white” schools admit “negroes” beyond where “separate but equal” laws were in effect. In fact, the Court stated the opposite: equality of condition is not a measure of equality. Equality is only measured by equal application of the law.
Unravelling all this will take time. The President's speech, and the amicus brief, go a long way towards it. Both are directed and effective.
Rush is wrong.
Remind me never to retain you to represent me :-)
That's what had happened- by the appointment of judges who would support AA.
It will be undone the same way IMHO.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.