Hiring by Race Now On Soggy Legal Turf

Consider this hypothetical: A principal wants to increase the number of minority teachers in the local junior high. Can she do so under current law?

The answer is no, yes - and maybe. Affirmative-action laws today are murky and subjective - and can as easily lead to a lawsuit as to a program to support minorities.

Use of racial preferences dates to the Nixon administration in the early 1970s. Federal law still makes race an acceptable criterion to help promote diversity in schools and workplaces, and to remedy discrimination in places such as all-white police forces.

But a decade-long shift in the law and public opinion has created a climate in which race can be just one of several factors in hiring, admissions, or contract decisions. And even this narrow use of race is under scrutiny today.

In recent months especially, the legal foundation for affirmative action has become more unsettled than ever, as a growing chorus of political movements across the country calls for dismantling such programs.

* Last week's surprise settlement of the biggest Supreme Court case of the year - a suit brought by a white teacher laid off in a New Jersey school - only adds confusion to the issue. Civil rights activists raised money for the settlement, fearing a broad ruling that could eliminate "diversity" as a rationale for affirmative action.

* The high court this month refused to consider California's Proposition 209, which bars use of racial preferences. This move will likely set up a Round 2 showdown over whether California's notion of civil rights will trump the federal one. And the debate will resonate in the 26 other states that are considering similar propositions.

* On Capitol Hill this month, the GOP-led Senate Judiciary Committee appears to have blocked President Clinton's nominee for civil rights chief - Bill Lann Lee - because he doesn't fully support dismantling preference programs.

For affirmative action, "the day of reckoning is on its way," says Clint Bolick of the conservative Institute of Justice in Washington, one of many opponents.

But "At least for now, I believe affirmative action is legal in public and private spheres," says Kathy Rogers, executive director of the National Organization for Women Legal Defense Fund in New York. "There are still a few people who think diversity is important."

So far, the high court has not banned race as a criterion. But five justices on the nine-member court have increasingly said race may almost never be used.

A narrowing focus

Today the high-court focus is on the shrinking ground between a use of race that is "almost never" acceptable - and "never" acceptable (such as Prop. 209).

Affirmative action falls under both the Constitution's "equal protection clause" in the 14th Amendment, and Title VII, a federal statute forbidding discrimination. While often forgotten, cities and municipalities are still required under Title VII to have affirmative-action plans.

A number of Supreme Court rulings back employers and contractors who hire minorities in order to protect against discrimination or law suits. Such hiring is called "voluntary compliance," and is usually done to correct a "manifest imbalance" - for example, in a majority black school that has no black teachers.

That brings us back to the local principal who wants to hire a minority teacher.

The legal framework dates back to the Supreme Court Bakke case of 1978. In Bakke, the Court said that a decision to admit a student could not be taken on the issue of race alone, or with race as a predominant factor. However, race can be taken into account as one factor.

The same essential rationale goes for hiring. If the principal wants to hire a minority to fulfill educational goals, to promote diversity, to balance out a teaching staff that is too white - then the hire may well be legal.

But the exact rules are tough to pin down, meaning the hire may also be subject to a lawsuit - if race was too big a factor, even among other factors.

Tough daily decisions

Still the murkiness surrounding the law is sometimes exploited. In an example that points up the difficulty in proving discrimination, a 50-year old white male recently applied for a teaching position at a Boston college. He was a leading intellectual authority in the field. But the college hired a Latina woman who, though talented, did not have the degree of mastery the man did.

"They wanted a woman of color," says one faculty member who witnessed the hiring. "Technically, he could go to the Massachusetts courts. But it would be hard to prove, and most people don't want that."

Proponents of Prop. 209 in California cite similar stories as a reason for ending race preferences. "In theory, preferences are supposed to be supported in a narrow fashion," says UCLA law professor Eugene Volokh, who helped write Prop. 209. "In practice, people pursue them aggressively and they make race the main reason for hiring - until someone takes them to court."

Affirmative-action supporters say if abuse is occurring, the need to is correct the plan, not end it.

The issue is a highly emotional one for many whites who complain that jobs and admissions should be decided on the question of merit. Many minorities are at least as emotional about the issue, feeling the systems of jobs and admissions are stacked against them, and that they do not have generations of wealth, education, and connections to fall back on for support.

Recent polls show language plays a large role in the debate. Americans tend to vote against "racial preferences." But they say they support "affirmative action."