Hour of Truth for Affirmative Action

Some of the greatest potential changes in race laws since the civil-rights era may arise this fall as efforts to eliminate affirmative action persist in states and in the nation's capital.

As early as next week, for example, critics of a landmark ballot initiative that bars affirmative-action programs in California are expected to ask the US Supreme Court to take the case - one that would hold national significance since voters in a dozen states are pushing similar measures.

Already the high court has agreed to hear one of the nation's most vexing affirmative-action cases when it convenes in October. That dispute, brought by a white teacher in Piscataway, N.J., who lost her job to an African-American, raises anew a question at the heart of the American conundrum over race: Should diversity be taken into account in hiring?

"If [California's Proposition 209] is granted by the court, it will be the one of the most important cases of the year, if not the most," says Harvard University law professor Lawrence Tribe. "It will set standards on federalism, civil rights, and influence the sheer politics of race in this country. Piscataway is also huge ... whatever way it is decided."

The cases come at a time of often confused soul-searching about America's old dilemma of establishing both justice and equality for all. President Clinton brought his bully pulpit to the race question in June, with a call to "mend, not end" affirmative action. Yet the White House has taken three different positions on the Piscataway case alone, most recently a brief issued last week.

Liberals, urban leaders, and church groups show heightened concern about Americans' sensitivity to race issues, and warn of widening social divisions. Some conservatives argue that an emphasis on race-based remedies is itself divisive and contributes to, rather than cures, racial problems.

Some changes in policy are already producing dramatic results. Statistics this spring from law schools in Texas and California showed a sudden drop-off of black applicants after the schools did away with their affirmative-action policies.

The schools' new admissions rules parallel those prescribed under the California initiative, Proposition 209. Ten black law students were accepted at the University of Texas this year, down from 65 last year. The University of California, Berkeley, admitted 14 blacks, down from 75 the year before.

Backlash grows

Efforts to end affirmative-action programs are growing. A bill to drop nearly all federal set-asides for women and minorities, for instance, is moving forward in Congress. Sponsored by Sen. Mitch McConnell (R) of Kentucky and Rep. Charles Canady (R) of Florida, the "Civil Rights Bill of 1997" could go to the floor next month.

Senator McConnell is also tying a measure that would end minority set-asides to a big highway bill moving through Congress.

His effort follows a landmark 1995 Supreme Court decision that dealt with the granting of construction contracts to minority firms. The justices ruled affirmative action set-asides in such cases were to be allowed only where historic discrimination was clearly shown, not as a general rule to promote diversity.

In California, Proposition 209 will go into effect when the Ninth Circuit Court of Appeal issues, as early as Thursday, a mandate. The law bars preferential treatment based on race or gender in public employment, education, and contracting.

Many cities, such as Los Angeles, have a "population parity ordinance" that asks officials to hire employees in numbers that roughly match the city's ethnic and racial makeup. Those would also end.

"Our future under laws like 209 is clear in the Boalt Hall [Berkeley Law School] example where no blacks are found," says Peter Elias Berg of the American Civil Liberties Union in Los Angeles, the group battling Proposition 209 in court. "What's amazing to me is that 209 passed muster when there was a huge finding of past discrimination on our side; we used state studies."

Supporters of the law admit there will be a tough transition time, but argue a "color blind" law will be better in the end.

"There's going to be a shake-out period that won't be easy," says Jennifer Nelson of the American Civil Rights Institute in Sacramento, the group coordinating Proposition 209. "Society as a whole needs to get past our habit of interacting with each other along racial and ethnic lines. Government needs to model that behavior first."

How or if the Supreme Court will approach Proposition 209, which California voters passed by a 55-to-45 margin, is a subject of much guesswork. A key dispute in the case is over access. Under the Proposition, citizens may petition for special assistance in hiring and contracting under many categories - but race is not one of them.

In applying to schools, for example, they can mention broken families, bad early schools, or extra-curricular activities or talents. But ethnic or racial origins may not be mentioned.

The question the high court must ask is whether race can be singled out for denial as a category for special assistance. But other factors like states' rights - the power of state residents to shape their own laws - also enter in.

The constitutional line of authority that allows citizens to petition for affirmative action for women and minorities - banned under 209 - dates to a 1969 Supreme Court ruling on housing discrimination.

The high court ruled that racial discrimination could not be denied as a rationale to petition for grievances if many other forms of petitions were allowed. The court would have to nullify that decision in upholding Proposition 209.

School case

The Piscataway case asks a different question. The case is highly unusual in that the Piscataway school board, having to cut one teacher in a 10-member department, relied on a seldom-used affirmative action policy instead of flipping a coin or finding other criteria.

Both Debra Williams, who is black, and Sharon Taxman, who is white, were hired on the same day in 1989 and had identical qualifications. Piscataway opted to promote racial diversity.

Ms. Taxman filed suit and won back a job, along with $144,000 in back damages, which have not been yet paid pending appeal by the school board.

Affirmative action to remedy past discrimination, when it is proved, is constitutional. In Piscataway, the question is whether promoting racial diversity is allowable as a public policy goal.

Advocates of a color-blind justice system say it is not. On the Supreme Court, those advocates appear to have four of the five votes needed to eliminate preferential treatment based on race. Justice Sandra Day O'Connor holds the fifth swing vote.

High court endgame

The high court could, by next June, arrive at a narrow ruling that would simply uphold previous law stating that firing for reasons of race is discriminatory. Or it could make a broad ruling that changes the civil rights landscape - by essentially ending affirmative action as it has been practiced.

"They can and probably will decide it was unacceptable to fire her," says Professor Tribe of Harvard Law School in Cambridge, Mass. "But what they say about why it is unacceptable will be of great importance."