Conservative politicians have been criticizing affirmative action for years. What’s different today is that the once liberal establishment has begun, grudgingly and slowly, to have its own second thoughts. The judges and unelected executive-branch officials who have largely made affirmative-action policy for the past 25 years–and the editorial writers who have supported them–are beginning to back off. They eschew the rhetoric of Republican presidential candidates who want to make affirmative action a “wedge issue.” The establishment would like to find a comfortable compromise. That’s difficult, as President Clinton is discovering. Promised months ago, the administration’s review of government affirmative action is still a work in progress, with no end in sight. But over time, the likely effect of such second-guessing will be to largely remove the government from handing out jobs or contracts or school admissions based on race.
Last week the U.S. Supreme Court seemed to scale back the federal government’s own affirmative action. By a 5-to-4 vote, the justices fashioned a legal test that will make it very difficult, if not impossible, to preserve government programs that give an edge to minorities and women. The decision in Adarand Constructors v. Pent was written in the usual murky legalese. But the point was articulated by the plaintiff, Randy Pech, whose Adarand construction outfit in Colorado had lost out to a Hispanic-owned company under a program that ear-marked highway contracts for minorities. The burly Pech asked why he should be discriminated against to make up for discrimination that occurred more than a century ago.
Reaction to the decision was muted. Of course, civil-rights leaders are angry; Jesse Jackson called it a “major setback.” But except for The New York Times, there was little protest on op-ed pages. A White House spokesman blandly noted that the administration was “asking many of the questions the court focused on.”
The decision signals that the high court is following the election returns. For more than a decade, since it ruled that race could be a “factor” in university admissions in the 1978 Bakke case involving the University of California (box), the court had basically rebuffed challenges to affirmative action. In recent years, however, the court has shown a growing reluctance to use “race-conscious remedies”–the practice of trying to overcome the effects of past discrimination by helping minorities and women. This has been true not only in affirmative-action cases involving jobs and contracts, but in school desegregation and voting rights as well. On the same day the court handed down the Adarand decision, it also east strong doubt, in a Kansas City, Mo., case, on whether federal courts can promote integration by requiring the state to fund inner-city “magnet schools.” In the coming weeks, the court is expected to cur-taft the drawing of racially “gerrymandered” congressional districts designed to elect minority lawmakers.
The animating notion of affirmative action has always been that it is necessary to use race to overcome the effects of racism. In some ways, the policy has worked. Affirmative action’s cultural impact is unlikely to be reversed entirely–the search for minorities for jobs is now ingrained, at least informally, in many institutions. On a pocketbook level, a 1995 study by Rutgers professor Alfred Blumrosen found that 5 million minority workers and 6 million women have better jobs today than they would have had without preferences and anti-dis-crimination laws. Certainly, minority contractors who stand to lose from the court’s Adarand decision are understandably anxious. “The reality is that 90 percent of the work that we do is in the public sector,” said Nigel Parkinson, president of a Maryland construction company. The decision, he said, will “just kill us.”
At the same time, affirmative action has engendered tremendous resentment among whites, few of whom have lost jobs to minorities, but many of whom think they have. The policy that was supposed to get “beyond racism” risks creating more racists. Court-ordered busing did not produce integration; whites fled the inner cities, leaving schools more segregated than even The Kansas City program challenged in the Supreme Court spent $1.3 billion to lure suburban whites to urban magnet schools. But after a decade, the city schools were still two-thirds black.
The rule of unintended consequences is particularly ironic in the voting-rights area. The Voting Rights Act of 1965 guaranteed minorities the right to vote–but did little to increase the number of minority representatives in Congress. The Justice Department responded by encouraging states to draw some majority-minority districts. By 1993, this led to historic gains for the black and Hispanic caucuses. But the weird, serpentine-shaped districts siphoned off liberal voters from other districts-producing conservative congressmen likely to be unsympathetic to minorities.
Impatient with the important but inevitably slow progress of the courts, COP leaders vow to pass a law that would eliminate all “racial preferences” from federal hiring and contracting. Given the public mood, it’s not surprising that Senate Majority Leader Bob Dole and his presidential rival Sen. Phil Gramm are attacking racial preferences. More telling of the shift in the establishment center was the recent scene in the Senate Labor Committee, where Nancy Kassebaum of Kansas, a moderate, held hearings to warn that affirmative-action requirements on business can become “harmful and unfair.”
The private sector’s response to all this? Most Fortune 500 companies say they are committed to affirmative action. Creating a diverse work force, they say, is good business in an increasingly diverse world. But most of these companies now work under federal rules that make sure they follow through. And many companies also have federal contracts that require them to hire minorities and women in rough proportion to the local population. Even if the Feds go all the way and eliminate their requirements, some sort of affirmative action, however informal, is likely to remain. But without the standards that grew out of the ’60s, affirmative action’s future is a bit hazier–and diversity will depend not on clear federal action but on corporations, and people, doing the right thing.
