Statement by Phil Kent, SLF President

December 20, 2002

"In the December 16 Black Entertainment Television interview, Sen. Tren Lott said that he now supports affirmative action "across the board." On the basis of that comment, some members of Congress are now publicly urging aggressive affirmative action legislation that, on its face, would potentially roll back two decades of clear court precedent against discriminatory government-sponsored race-based quotas and in support of color-blind programs.

It is critical to note that, since the landmark 1989 U.S. Supreme Court decision, City of Richmond v. Croson, not one government race-quota program for public contracting has survived judicial scrutiny anywhere in the United States. Southeastern Legal Foundation is a public interest law firm which has been involved in at least a dozen constitutional challenges against such programs, as well as cases involving university admissions and forced busing. Our firm takes on these challenges not because we are "racists;" on the contrary, the Foundation's mission is to vigorously defend the U.S. Constitution's guarantees of equal protection and due process, as well as the color-blind mandate enshrined in the Civil Rights Act of 1964.

Government-sponsored discrimination in the form of segregation was wrong forty years ago, and it is just as wrong today when any government - federal, state, or local - discriminates against any citizen on the basis of race or gender. Such is the case with race- and gender-based quotas for government programs.

It is likewise critical that, just as the courts have done consistently for two decades, we distinguish between legal and illegal affirmative action. Illegal affirmative action programs discriminate against individuals based solely on the color of their skin or gender - whether through unfounded "quotas," or "goals," or based on unsound "disparity studies."

Legal affirmative action, however, is an entirely different matter. For example, in Detroit, Michigan, the city's unconstitutional race-based quota program for public contracts was struck down by the federal courts in 1993. In its wake, Detroit's African-American mayor, Dennis Archer, instituted a legal affirmative action program establishing participation goals for local, small, and objectively disadvantaged companies - with no reference to unconstitutional race-based quotas. The result - today, the city has a higher minority participation in its legal affirmative action program than it did under the old, unconstitutional race-quota program.

We urge Sen. Lott to clarify his position on affirmative action. By supporting forward-thinking, legal affirmative action, he will join the mainstream of legal precedent, as well as organizations like Southeastern Legal Foundation that strive to protect individual rights against unfair, unconstitutional government action.

However, by supporting illegal race- and gender-based quotas for public contracts, school admissions, employment and the like, he will join the ranks of racially polarizing demagogues and irresponsible politicians who would take America backward. Responsible Americans fought and won the battles against slavery, segregation and, more recently, against discriminatory quotas and set-asides. Sen. Lott should look forward to America's continuing evolution as a color-blind society and aggressive anti-discrimination efforts, not backward to the terrible past of government-sponsored discrimination."

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