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Jewish World Review Feb. 11, 2002 /29 Shevat, 5762

Nat Hentoff

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Ted Kennedy versus a free thinker -- ONE of the president's most important and controversial nominees has yet to have a hearing before the Senate Committee on Health, Education, Labor and Pensions. He is Gerald Reynolds, and the position is assistant secretary of Education for Civil Rights.

There were heavy storm warnings as soon as the nomination was announced last June. The committee chairman, Ted Kennedy, has "serious concerns" about the nominee's qualifications, and the Leadership Conference on Civil Rights -- a coalition of supporters of affirmative action as it is presently practiced -- vehemently opposes Reynolds. Julian Bond, chairman of the NAACP, charges Reynolds with being a "staunch opponent of fairness programs."

Mr. Reynolds, who is black, grew up in the South Bronx and Queens, the son of a retired New York City police officer. He attended public schools, graduated from New York's City University at York College, and received his law degree at Boston University. His seven-year-old daughter attends public school, where his wife is the president of the parent's association.

So far, there is nothing at all incendiary in this resume, including his work as a private litigator, and in regulatory law for Kansas City Power & Light Co. However, during his term as president of the Center for New Black Leadership in Washington, D.C., Mr. Reynolds committed the heresy of opposing racial preferences in education. Instead, he has redefined affirmative action as "community-based programs whose primary aims are to replace self-defeating values with improved test scores for students, enhanced employment skills, and economic development of urban communities."

The Office of Civil Rights in the Department of Education deals with affirmative action policies and programs as well as complaints of racial and gender discrimination.

Reynolds is clearly against discrimination practices and, despite accusations to the contrary, intends to vigorously enforce Title IX of the Education Amendment of 1972 prohibiting sex discrimination in education programs, including sports that are funded by the federal government. "That," he says, "is a straight-out anti-discrimination statute."

So what is so troubling to his accusers? In a long, bristling letter to Sen. Kennedy on Reynolds, the Leadership Conference on Civil Rights states unequivocally that Reynolds is vehemently opposed "to all forms of affirmative action."

As I've indicated, that depends on your definition. In 1997, Reynolds wrote that abolishing "racial preferences and set-asides will return us to affirmative action as it was first proposed in the late 1960s - aggressive and affirmative outreach to increase the participation of minorities in education settings and the workspaces."

The Leadership Conference on Civil Rights accuses Reynolds of denying that "racism is a barrier preventing African Americans from making progress." But in his writings and public appearances, Reynolds has - as Secretary of Education Rod Paige assured Ted Kennedy - "never denied - and does not deny - that racism and discriminatory practices do exist." But he also believes that collective racial classifications can only be used under "very restrictive circumstances," where the remedy is narrowly tailored.

In its letter to Sen. Kennedy, the Leadership Conference on Civil Rights ends its indictment of the nominee by citing his "criticism of Jesse Jackson in particular."

I ask the senators who will be judging Gerald Reynolds if this requirement of fealty to Jackson reveals the extremes to which opponents of Reynolds will go to defend racial preferences. Justice Lewis Powell's swing vote in Regents of the University of California v. Blake (1978) is continually used by advocates of racial preferences because Powell said that race can be a factor - but not the primary factor - in college admissions. But in that very decision, Powell also said that nonetheless, there has to be strict scrutiny when using race collectively:

"The individual," Justice Powell wrote, "is entitled to judicial protection against classifications based on his racial or ethnic background, because such distinctions impinge upon personal rights," rather than general extra protection for membership in particular groups. That means all individuals of all races.

When and if there is hearing, in view of the likely party-line vote in the committee Sen. Kennedy chairs, Gerald Reynolds's fate - as well as a fair definition of affirmative action - will depend on Sen. Jim Jeffords of Vermont, who has stated that "a president is entitled to a nominee of his or her own choosing unless that person is unethical or unqualified."

Gerald Reynolds is neither, even if he does not genuflect to Jesse Jackson.

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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