John Ashcroft's First Year as Attorney General

The Ashcroft Justice Department has abandoned a key affirmative action position taken by the Clinton administration, declining to file a brief in the landmark University of Michigan affirmative being decided by the 6th U.S. Circuit Court of Appeals. In a December 2001 editorial, the Detroit Free Press called the Justice Department's inaction a "disappointing silence," saying that while "neutrality is preferable to opposition, it remains troubling that Justice has chosen not to take a principled stand in favor of integration in higher education."65

Earlier in 2001, the Justice Department dismayed some of its right-wing supporters by filing a brief with the Supreme Court in the case of Adarand v. Mineta, supporting the federal rule that allows the Department of Transportation to operate affirmative action programs. Reportedly, Transportation Secretary Norman Mineta, who has long been committed to effective affirmative action measures, argued strenuously on behalf of the program challenged in Adarand. Administration officials sought to mute right-wing criticism by emphasizing the limited reach of this decision. Indeed, the first argument in the administration's brief was that the Supreme Court should not decide the case at all, and the Court in fact decided to do just that. The Wall Street Journal reported that several Justice Department officials said no sweeping pronouncements could be made about the administration's position on affirmative action based on the Adarand brief. "This is the argument for this program," one official said. "It is a narrow focus."66

Observers say the Justice Department was avoiding a legal fight against affirmative action until a "better" case comes to court and that the Solicitor General was legally bound to defend the Department of Transportation. In fact, it would have been an extraordinary step for the federal government to switch sides in a case currently before the Supreme Court. Most agree that the true test of the Justice Department's affirmative action position will come when one of the challenges to race-based university admissions programs, such as the University of Michigan case mentioned above, comes before the court; two others are also working their way through appeals. In 1996, now-Solicitor General Ted Olson argued the landmark Hopwood decision for the anti-affirmative action Center for Individual Rights, which banned affirmative action programs in university admissions throughout the 5th Circuit.

Another major test for the Department in this area has centered on the Federal Communication Commission's (FCC) equal opportunity rule. As The Washington Post put it, the rule represented "the most inoffensive corner of affirmative action," requiring only that broadcasters engage in outreach and other efforts to "try to get minorities and women into their applicant pools."67 The rule was struck down by a divided D.C. Circuit Court of Appeals in June 2001. The presidents of the NAACP, National Urban League, National Council of La Raza, and LULAC wrote to Ashcroft and FCC chair Michael Powell urging them to request Supreme Court review of the appellate court decision invalidating the FCC rule. As the presidents of the nation's four largest African-American and Hispanic organizations explained, the result would be "enormously harmful to minority and female job applicants" at radio and television stations and would undermine the bipartisan policy of "ensuring equal opportunity in the broadcast industry."

In December 2001, the Justice Department took a position on the issue, asking the Supreme Court not to hear the case even while conceding that the decision invalidating the rule was flawed. People For the American Way Foundation joined with other civil rights groups in arguing that the negative impact of the decision was far broader and asking the Supreme Court to take the case. In January 2002, the Court declined to hear the case.

Also last year, the Ashcroft Justice Department dropped support of a key civil rights suit regarding job discrimination. In 1997, the Clinton Justice Department intervened on the side of the plaintiffs in Lanning v. SEPTA, arguing that the Pennsylvania transportation agency discriminated against female applicants by requiring a running test that was even stricter than the one required by the FBI and Secret Service. After the Ashcroft Justice Department dropped its support for the plaintiffs, an attorney with the Public Interest Law Center of Philadelphia, which is representing the plaintiffs, criticized the move as "contrary to the promise Attorney General John Ashcroft made not to retreat in the area of civil rights."68