Affirmative action may no longer be on the Supreme Court's current docket, but it's rising ever higher on the public's agenda.
The debate over affirmative action has in recent weeks torpedoed a nominee to head the Justice Department's civil rights division. Bill Lann Lee has admirable qualifications, but he is also a longtime backer of affirmative action programs. That sealed his fate with Republicans in the Senate.
But the Republicans aren't likely to get from President Clinton anyone who agrees with their views. So, in order to fill the job (and, for once, stand his ground on a nomination) the president may as well go ahead and make the Lee appointment during Congress's recess.
Lee's voice would be a strong one in favor of affirmative action. And that side of the issue could use a convincing spokesman. The other side is increasingly vocal and persuasive, in the legal realm at least. The president's new panel on race relations apparently chose to ignore that fact by initially snubbing anyone who opposes affirmative action in its hearings on achieving diversity. That was a mistake. Those opposed to affirmative action - or "racial preferences," as they'd be more likely to put it - ought to be pressed on how they'd achieve greater representation of blacks and other minorities in places where these Americans historically have been underrepresented.
Diversity played a key role in another recent affirmative action-generated event - the out-of-court settlement of a much-anticipated case that might have given the Supreme Court an opportunity to strike down all racial preferences. Diversity was the sole criterion used by a New Jersey school board to keep on a black teacher while letting go a comparably qualified white teacher. The latter sued and won in the lower courts. Civil rights groups, concerned she also would win in the Supreme Court, put up the money to settle the case.
So, for now, the main high-court precedent allowing attention to race in hiring or admissions - ironically, the 1978 Bakke "reverse discrimination" case - remains intact. (While finding for the white plaintiff, Bakke left room for consideration of race, as long as it wasn't the sole factor.) Also in place are a number of lower-court decisions (including the New Jersey ruling) that leave little room for affirmative action.
This situation can't last very long. Another case soon will find its way to the Supreme Court. Affirmative action based on anything resembling a quota, or using race as the decisive factor, is likely to keep losing its legal moorings. And diversity - a fact of American life - seems a weak rationale. Most everyone approves of it, but no one wants to be sacrificed to it.
Affirmative action programs resting on these bases are constitutionally vulnerable. But there are other, less vulnerable bases: provable past discrimination, certainly, and circumstances where a need for greater minority representation is demonstrable. Many police forces, teaching staffs, and professional schools, we believe, present strong arguments for bringing race into the decisionmaking process. Recruiting promising students, and opening educational opportunities at younger ages for minority children, are steps that should be pursued affirmatively.
The basic standard is fairness toward individuals - those still held back by historic patterns of discrimination, and those hurt by programs that allow race to eclipse merit.