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E-Letter To Bruce Fein Re: The Adarand Case


I read your opinion piece, "Affirmative Apostasy?" with great interest. I hope that you have had the opportunity to read my defense of the Bush administration's brief pertaining to the Adarand case. A reading of both of our opinions should make it abundantly clear where you and I disagree regarding the Bush brief and the Department of Transportation's (DOT) policies. However, I do feel it appropriate to place emphasis on my position that you and many other conservatives who are disappointed in the Bush decision have done your argument, President Bush and the American public a disservice by misrepresenting and oversimplifying not only aspects of the Bush brief for the respondents, but particularly aspects of the program in question the Department of Transportation's Disadvantaged Business Enterprise (DBE) program.

You write:

"Congress has enlisted the Department of Transportation to skew the distribution of federal highway construction and transit funds based on race or ethnicity through the Disadvantaged Business Enterprise (DBE) program.

It audaciously presumes that every member of a racial or ethnic minority has been victimized by past economic, social or cultural bias; thus, each member of the group enjoys extra credit in competing for construction contracts against white-owned or operated enterprises. To weed out the unworthy DBE, each must notarize a statement of victimization. But what self-interested DBE would refuse?"


Your description of the DBE program in this quote and throughout your article is incomplete and full of half-truths. As a result, I can only conclude that your aim is to cause people to look away from the actual language in the Bush brief, and in the public statutes, and in the DOT regulations that very clearly describes and outlines the DBE program.

Indeed, there is a presumption in the DBE program, which partly originates with the Small Business Association (SBA) "that socially and economically disadvantaged individuals include Black Americans, Hispanics Americans, Native Americans, Asian Pacific Americans, and other minorities, or any other individual found to be disadvantaged by the {Small Business} Administration pursuant to section 8(a) of the" SBA, 15 U.S.C. 637(d) (3) (C).", as it was written in the Bush brief. But eventually women were added to the category of "presumed" socially and economically disadvantaged individuals.

I find it so interesting to see how often conservatives and affirmative action opponents leave out the fact that many other American minority groups other than Blacks benefit from affirmative action programs. I especially find it interesting that women are never singled out as a beneficiary of the program in the manner that Blacks are. Yet in some cases, women – and that includes a majority of which are White women – are the ones benefiting from the program(s).

Why don't White women show up as prominently as Blacks on the conservatives' affirmative action beneficiaries radar screen?

But possibly the most striking omission in your analysis and commentary and that of the conservative movement is the fact that you fail to mention that the DBE program is not contingent solely upon one being classified as socially and economically disadvantaged due to the race-presumption, but rather, the DBE program is contingent upon the fact that those who are socially and economically disadvantaged have had their "ability to compete in the free enterprise impaired due to diminished capital and credit opportunities as compared to others in the same business area who are not socially disadvantaged, " 15 U.S.C. 637(a)(6)(A).

You and conservatives gloss over this qualification because it destroys your argument that the DBE program is a blind, cold, mindless program that simply places non-Whites over Whites - even that it is "reverse racism". That rhetoric may work on the majority of the American public, unfortunately, but it will not work on Blacks like us who have read the entire Bush brief, and the details of the case, and who realize that the DBE program is open to all people, of all ethnicities, especially White women. And even more importantly, the program is aimed at those who have experienced diminished capital and credit opportunities.

It is always amazing to hear conservatives dismiss the arguments of Blacks that they have been denied access to credit and capital due to their skin color. Every year, study after study comes out that verifies this reality.

We gather that conservatives must believe that if a person repeats a slogan long enough, it will eventually seap into the American psyche and be accepted as true.

Well, we find it hard to argue with the results of conservative and Republican opinion leaders in the past. After all, they were able to get the whole country to believe, through argument and innuendo, that it was Blacks on welfare, and not bloated defense spending, government waste and a monetary inflation [that caused Cost-Of-Living Adjustments (COLAs) on socials spending programs to increase by a third], that were responsible for the budget being in deficit.

Fortunately, the Bush lawyers recognized that the evidence that Blacks are denied access to credit and capital is abundant; that such evidence has been presented to Congress; and that this deficiency in the access to capital and credit, is a significant factor impeding the progress of Blacks in the highway construction business.

The Bush lawyers included this fact of life in their brief when they wrote:

The extensive record before Congress included specific evidence of the problems confronted by DBEs. With respect to access to necessary capital, minority applicants generally and minority applicants in the construction industry in particular were denied bank loans at a higher rate than non-minorities with identical collateral and credentials. Pet. App. 35-39.

A study of the construction industry supported by the U.S. Bureau of the Census and National Science Foundation found that "blacks, controlling for borrower risk, are less likely to have their business loan applications approved than other business borrowers," and generally receive smaller loans when approved. Caren Grown & Timothy Bates, Commercial Bank Lending Practices and the Development of Black Owned Construction Companies, 14 J. Urb. Aff. 25, 26, 39 (1992) (Grown & Bates) (discussed by Rep. Norton, 144 Cong. Rec. H3958 (May 22, 1998)).

A survey of 58 state and local studies of disparity in government contracting found that "African-Americans with the same level of financial capital as whites receive about a third of loan dollars when seeking business loans."...Congress moreover, heard first-hand accounts of subtle and not-so-subtle discrimination in the provision of needed capital.


The Bush lawyers were confronted with reams of documentation that provide evidence and which verify that Blacks face inordinate discrimination and denial of credit and capital, in general, and specifically those in the construction field. Furthermore they saw first-hand evidence of the discrimination of Blacks specifically in obtaining bonding and the procurement of government contracts. They reference various sources of evidence that support these charges, much of which has been presented in Congress on the open floor and in front of various committees. Yet and still, you work to frame this case as if the central story is that a White business that was hurt because Blacks were given preferential treatment in a bidding process for no reason than the color of their skin.

Your argument and that of Adarand Constructors against the DBE program stands on shaky ground and you would do well to actually reflect over the cogent arguments made by the Bush lawyers in favor of the program from the beginning of the brief to the end. Here is a portion of one such argument that if read carefully, we think, removes much of the distortion you attempt to apply to the clear reasoning and explanation of the DBE provided by the Bush administration. Think over what follows in light of the superficial manner in which you have described the DBE program and affirmative action, in general.

"Thus for the purpose of the DBE program, an individual is "[s]ocially disadvantage" if he or she has been "subjected to racial or ethnic prejudice or cultural bias because of "his or her" identity as a member of a group without regard to individual qualities." 15 U.S.C. 637(a)(5). An individual is "[e]conomically disadvantaged" if his or her "ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same business area who are not socially disadvantaged." 15 U.S.C. 637(a)(6)(A). Those basic definitions are race-neutral. The determining factor is not the individual's race; it is having suffered discrimination on account of race, ethnicity or cultural bias without regard to what that race, ethnicity, or culture might be and having sustained diminished capital and credit opportunities compared to those who have not been victims of such discrimination. The Secretary's regulations make it clear that the DBE program is aimed at everyone, regardless of race or ethnicity, who meets the statutory criteria for social and economic disadvantage based on individual experience. See 49 C.F.R. 26.61(b) & Pt.26, App. E.

Where is the Bush administration wrong in what it wrote?

Mr. Fein, if you weren't so bent on trying to end affirmative action programs, regardless of the details of the various cases that highlight the issue, you would have seen the appropriateness of the Bush arguments and the fact that in the Adarand case, the DOT's DBE program can even be applied to White men, even, Adarand Constructors. The Bush team of lawyers are correct when they depict the program as "aimed at everyone". The DBE program is that braod - it can capture discrimination and apply a remedy to anyone who experiences discrimination. But at the same time the program does not attempt to act as if there is no compelling evidence that Blacks specificially experience discrimination in the highway construction business and in the extension of credit and capital, as you and many conservatives are so willing to do.

While you may feel that President Bush mislead you during the campaign on the issue of affirmative action, that is no excuse for the intellectual laziness and narrow-mindedness that you display toward this issue and the 50-page Bush brief, which reads far differently than your characterization of it in your article.

Instead of trying to win the war against affirmative action by placing arguments where they simply don't belong, why don't you take and evaluate the slew of affirmative action court cases that await us all, over the next couple of years, one battle at a time.

At least that way truth won't become a casualty of your efforts.



Cedric Muhammad

Thursday, August 23, 2001

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