California's Proposition 209 took effect last week to loud protests from one group of civil rights advocates and the cheers of others who also claim the banner of civil rights. The measure, which rolls back racial and gender preferences in hiring and admissions at public institutions in the nation's largest state, is a bellwether of change in policies affecting race throughout the country.
Even before its formal enactment, the new law, approved by the state's voters last year, had a sharp impact on the University of California. Its law school will have only one black student enrolled this fall, down from 20 a year ago. More than that had been accepted for admission to prestigious Boalt Hall, but they opted for other law schools, often citing the new, unfriendly atmosphere at UC.
The University of Texas Law School has experienced a similarly precipitous decline in black and Hispanic admissions this year following a court-ordered reversal of its longtime policy of racial preference.
Do these cases represent merely an interim adjustment before qualified minority students resume choosing these schools despite admissions policies that are barred from taking race into account as a selection criterion? Or do they indicate that important doors to opportunity are slamming shut for minorities, as critics of the new policies aver?
Graduate schools - gateways to the highest echelons of the US economy - have posed these questions most dramatically. But they're being raised at all levels of society. This fall the US Supreme Court will deliberate a case from Piscataway, N.J., concerning the layoff of a white teacher and retention of a black teacher - both equally qualified and of equal tenure. But the school board's decision was made on the basis of race, keeping the black instructor to increase faculty diversity. Can that criterion be defended before a high bench that has shown itself increasingly leery of race-based official actions that fail to cite evidence of past discrimination? The Clinton administration has decided not, having shifted its legal stance to opposing the board's action while arguing that racial considerations should be allowed when a practical need is demonstrated - as in the case of black prison-guard officers in a program where most inmates are black.
In Colorado, a case involving a state preference for minority contractors in road construction work continues to play out - though the US Supreme Court in 1995 ruled in favor of the white contractor who brought the suit. The state has shifted its set-aside policy to require a finding of economic or social disadvantage, not simply minority status, before awarding a contract. Ironically, a federal judge has opened the way for white contractors who can show they were disadvantaged by the former race-based policy to qualify for Colorado's affirmative action program.
Such turns of events have led some, blacks as well as whites, to question whether affirmative action is moving so far from its original rationale as to lose all meaning. That rationale, of course, was the need for extraordinary steps to help African- Americans surmount the effects of slavery and Jim Crow state-sanctioned discrimination. One response is a campaign by anti-affirmative action activists, such as University of California regent Ward Connerly, himself black, to replicate Prop. 209 in other states. Florida, Ohio, and Colorado are among their current targets.
More important, we suspect, will be future Supreme Court pronouncements, on the New Jersey case - and on Prop. 209 itself as its opponents push their case all the way to the highest court. The California measure also faces tests in state court, since California laws upholding affirmative action have to be specifically challenged by officials seeking to enforce Prop. 209.
BUT a big part of the country's ultimate judgment on affirmative action will be forged at the community and institutional levels as decisions are made on how to weigh race and background in hiring, admitting, and applying.
We feel a strong case can often be made for taking into account obstacles someone has faced, as well as society's benefit from seeing people of all races and backgrounds progress economically and intellectually. We feel that education, particularly at the elementary and secondary levels, should be the focus of extraordinary efforts to equalize opportunity so that more black, Hispanic, and other minority young people can reach college and grad school prepared to compete. We feel that efforts to reach out to and recruit talent from minority communities should be encouraged.
Most of all, we feel that people have to be treated as individuals, whose abilities have nothing to do with race, gender, or group and everything to do with their inalienable relationship to their Creator.
Affirmative action, clearly, is evolving. But in its basic meaning of helping individuals break through cultural or economic barriers to advancement, it should not disappear.