The constitutionality of affirmative action was denied fresh clarification by the US Supreme Court this week. Letting stand a lower court ruling that upheld California's Proposition 209, the country's highest bench left for another day the many questions raised by that law.
Are race or ethnic background ever legitimate factors in letting public contracts, or admitting students to public universities? Are there constitutional ways of alleviating the wrongs of past discrimination against whole groups of people?
The Supreme Court is likely to keep defining law in this area. Cases now on its docket, notably a New Jersey teacher's claim that she lost a job to an equally qualified colleague on the basis of race, will affect affirmative action policies. And Prop. 209 and its spawn in other jurisdictions will generate lawsuits by people aggrieved by the elimination of programs that helped them.
The first such Prop. 209 clone went before Houston's voters this Tuesday - with a key difference. The city's mayor and council altered the wording of the proposition before it was put on the ballot. California's initiative, and Houston's Proposition A as drafted by its backers, had an unmistakable civil rights ring. They proclaimed that the state, or city, "shall not discriminate against or give preferential treatment to any individual or group on the basis of race, sex, ethnicity, or national origin ..."
The new phrasing of the Houston proposition, in essence, simply asked whether the city should get rid of affirmative action. A "yes" vote for either wording might have had the same practical effect. But backers of affirmative action, including Houston Mayor Bob Lanier, felt sure the revised - in their view more honest - wording would elicit many fewer "yes" votes. And they were right. While California's measure, couched in civil rights terms, passed handily in 1996, the Houston measure was decisively rejected, 55 percent to 45 percent.
This result confirmed polls in Houston and elsewhere that indicate the public often sees something positive in affirmative action, a term that can embrace a broad range of policies intended to give special consideration to minorities long held back by discrimination.
There's really nothing contradictory in voters' differing response to different ways of stating this issue. At heart, the issue is fairness. Nearly all Americans agree that discrimination by race - whatever the color of the victim - is wrong. Many would also agree that special efforts to boost the educational and economic status of those long discriminated against are also fair.
The danger in affirmative action is that it can become bureaucratically ingrained and inflexible, blurring individual merit and sometimes aiding individuals who need or deserve no help. As the country has learned, it can also bring a backlash.
The risk in totally throwing out any use of affirmative action is that large numbers of Americans are still stuck in historical patterns of stifled opportunity. Bringing these Americans into the mainstream is crucial to national unity and civic harmony.
What most citizens in Houston, California, and other parts of the country would probably like to see is a reasonable middle ground: the end of quotas, renewed emphasis on merit, strong enforcement of antidiscrimination laws, and strengthened efforts - centered on education - to help the disadvantaged move up the ladder of American life.