A NEW PUSH FOR BLIND JUSTICE

By Richard Lacayo

You won't find an attack on affirmative action among the major clauses in the G.O.P. ``Contract with America.'' There were only so many battles that Newt Gingrich wanted to wage during the first 100 days. But just wait until the next hundred. The new Republican majority in Congress is getting ready to position Democrats as die-hard defenders of preferential treatment for minorities. (The fact that affirmative action also benefits women, making it potentially a bipartisan perk, isn't mentioned much in the present debate.) Last week Senate majority leader and presidential candidate Bob Dole let drop on NBC's Meet the Press that he had asked the Congressional Research Service to compile a list of all bills that offer special preferences for minorities. While acknowledging America's history of discrimination, Dole wondered aloud, ``Should future generations have to pay for that? Some would say yes. I think it's a tough question.'' For Republicans that's more than a rhetorical question. It's the sound of a wedge issue being honed for 1996.

After two decades in which affirmative action has been more widely used in hiring, awarding contracts and school admissions, misgivings about it are reaching a critical mass. A 1994 Times Mirror poll shows for the first time in eight years that a majority of whites agree with the idea ``We have gone too far in pushing equal rights in this country.'' In the federal courts several cases have been filed by angry whites that challenge race-based preferences. And in a development that could start a national free-for-all on the issue, Californians are expected to face a ballot initiative next year that would forbid preferences for women or minorities in state programs.

``Reaction against affirmative action has been growing for a long time,'' says Andrew Hacker, author of Two Nations, the widely cited study of race in the U.S. ``Even among liberals there is a feeling of weariness.'' While accepting that affirmative action may be a redress for centuries of discrimination against blacks and women, Americans have grown suspicious of what it can become in practice. In a TIME/CNN poll of 800 adults taken last month, 77% thought that it sometimes or frequently discriminates against whites. Even among black respondents, 66% answered the same way.

To some extent it's the very success of affirmative action that has made it vulnerable. Before the major civil rights legislation of the mid-1960s, a century of Jim Crow laws in the South and entrenched practices elsewhere enforced a world of preferences for white men--one that no mere change in the laws could undo by itself. Without affirmative action, it's unlikely that African Americans--or women--would have been able to open up such white male bastions as big-city police and fire departments. Helped by affirmative action, about one-third of blacks have made their way into the middle class. ``To an amazing degree, it has worked,'' says Roger Wilkins, a history professor at George Mason University in Fairfax, Virginia, and a longtime civil rights activist. ``If you stopped all affirmative action, we would slide backward.''

But memories of the worst of the bad old days are fading. With campuses and workplaces more integrated, it becomes harder to justify a continuing use of racial preferences as a clear remedy for current discrimination--especially when they channel benefits to blacks already in the middle class, sometimes at the expense of less affluent whites. And even among African Americans, who still support affirmative action by wide margins, there is resentment about the way it can cast doubt on the genuine abilities of anyone who benefits by it.

Into that climate comes the West Coast ballot measure, called the California Civil Rights Initiative. The brainchild of two academics, Thomas Wood and Glynn Custred, it would forbid the state to use race or gender preferences in employment policies, admissions or awarding contracts. Affirmative action has deteriorated into ``ethnic bean counting,'' says Wood.

But even before voters get to decide, affirmative action may be trimmed by skeptical judges. This term the Supreme Court is considering what could be a test case for federal contracting programs that give advantages to businesses owned by women and minorities. Under a minority-preference program of the Department of Transportation, white-owned Adarand Constructors of Colorado Springs, Colorado, was bypassed for a federal job building highway guard rails, despite having submitted a lower bid than the winner--Gonzales Construction. Adarand sued. ``What is prejudice?'' asks Adarand manager Randy Pech. ``It's when government makes a decision based on something that doesn't matter, like race or gender.'' In the tangle of its earlier rulings on affirmative action, the Supreme Court has required states and localities to design race-based preferences narrowly, as compensation for well-documented prior discrimination. But the court allowed the Federal Government greater leeway, in part because, under the Fourteenth Amendment, Congress has broad powers to ensure equal protection to all citizens. Adarand's lawyers want federal actions subjected to the same strict scrutiny applied to states. That argument lost twice in the lower courts. In the Supreme Court, however, all bets are off. The last time it approved a race-based special preference, in a 1990 case on broadcast licenses, the ruling came down as a 5-to-4 majority cobbled together by the tireless liberal William Brennan. Four of the winning five have since retired; all four dissenters remain. Among the Justices who have joined the court since then, Clarence Thomas is on record as opposing affirmative action.

From the time of its 1978 Bakke decision--which agreed that a white applicant to medical school had been unjustly excluded by an affirmative- action quota--the court has mostly sown confusion on this issue. Goals are O.K., it says. Numerical quotas, in most instances, are not. Just how to achieve the first without falling into the second has been a problem, one that is at the heart of a Texas case currently on appeal.

Until 1950 the University of Texas Law School excluded blacks entirely. (In the 1940s it had tried to offer them a separate facility in the basement.) Fifteen years ago, the U.S. Department of Health, Education and Welfare found that the school had still failed to eliminate vestiges of past discrimination. Soon after, the university adopted a new admissions policy: black or Mexican-American applicants would now be considered by a separate committee and admitted under lower standards than those required of whites. After four white students were rejected in 1992, they brought suit. Last year a federal judge ruled that the two-track system was an unconstitutional denial of equal protection. Because the judge did not order the law school to admit them, the students have appealed the ruling. Meanwhile, the university has scrapped the two-committee system.

If the Supreme Court has sent mixed signals about race-based hiring, the Justices have been clearer about race-based firing: they have ruled in favor of whites who have lost their jobs in order to accommodate minorities. Which is why the Clinton Administration seems to be asking for trouble with its handling of a New Jersey case that involves a 1989 faculty layoff at Piscataway High School. The choice came down to two equally qualified teachers who had equal seniority. Ordinarily, that would have meant a coin toss to decide the loser. Instead the school board dismissed one of them, Sharon Taxman, who is white, arguing that keeping the other, who is black, was essential to diversity--not so much on the staff as a whole, which was 10% black, but just among the business teachers.

When Taxman sued, the Bush Justice Department sided with her. So did the court. The school board has appealed. The Clinton Justice Department, which inherited the case, remained on Taxman's side until last summer, when it switched. ``It was an appropriate affirmative-action plan,'' insists Assistant Attorney General Deval Patrick, ``because race did not trump anything that matters.'' Except Taxman's job. A court ruling on the appeal is expected well in time for use in Republican campaign ads in '96.

--Reported by Adam Cohen/ New York and Hilary Hylton/Austin

With reporting by ADAM COHEN/ NEW YORK AND HILARY HYLTON/AUSTIN