Affirmative action is doomed. Or so we’re told. The last six months have
seen thirty years of rising resentment of race-based preferences come to a
crest. The Supreme Court marked a race-heavy term by setting a new, higher
threshold for federal affirmative action programs. President Clinton has
just delivered a broad-brush reevaluation of all these programs. Senate
Majority Leader Bob Dole has revved up his 1996 presidential bid with a
similar Congressional review. And in California, Governor Pete Wilson, also
a GOP presidential contender, makes hay of the issue while a state-wide
ballot measure for the 1996 election could overturn virtually all
affirmative action for state positions.

But is the end nigh? Maybe not.

First, the Court’s recent decision in Adarand Constructors v. Pena wasn’t
the body blow to affirmative action many commentators claimed. In the case,
Adarand, a white-owned contracting firm, had lost a highway project
in Colorado to a Hispanic firm, despite having submitted the lower bid.
The contractors cried reverse discrimination, sued, and lost. So they took
the case up to the Supreme Court. But for all the hoopla, Adarand didn’t
even win outright at the high court; the case was remanded to a lower court
for a decision under tougher scrutiny. And while Sandra Day O’Connor‘s 5-4
decision did ratchet up the legal threshold for federal race-based
programs, it explicitly left room for the state to continue imposing
race-based remedies where necessary. Racism persists, O’Connor stated
unequivocally, “and the government is not disqualified from acting in
response to it.”

Next, for all Clinton’s calls for a sweeping review, the final report,
while hot off the presses, is, in its content, actually quite tepid. In its
96 pages, the report mostly defends existing federal programs, a far cry
from the radical overhaul Clinton hinted at in March. It dedicates the
government to refining, not reconceiving, affirmative action. “Mend it, but
don’t end it,” Clinton rhymed in Jesse Jacksonian style. (“Fix it, don’t
nix it,” he might have added. “Heal it, don’t repeal it.”) Clinton has also
issued a presidential directive to make sure federal programs don’t result
in quotas or reverse discrimination, and that they pass the Supreme Court’s
new standard. But all that means is making sure the government obeys the
law.

While Clinton, in typically ponderous style, delayed five months in issuing
his report, eyes turned to Congress, this year’s locus of legislative
activism. But Bob Dole pulled off the unthinkable feat of out-sputtering
Clinton. For all its explosiveness, affirmative action wasn’t a Contract
with America plank. So far it hasn’t been able to elbow off the table
issues like regulatory reform and property rights — issues that may sound
like snoozers but that the Republicans’ bread-and-butter businessmen
constituents love. When The Washington Post asked Dole about a
“summary-draft” of his bill that seemed to suggest wholesale elimination of
affirmative action, Dole instantly backed off. (An “old staff draft,” he
insisted, refusing further comment further.) Now it looks as if 1995 may
not see a race preference ban at all. Though Dole and Florida
Representative Charles Canaday promise to trot out their doomsday plans any
day now, a floor vote is unlikely. Top Republicans are telling the papers
they’ll probably shelve the bills until next year: election year 1996.

Lastly, even the California referendum, while fast out of the starting
blocks, is by some reports losing speed. Though it’s still favored to win
in 1996, the practical details of securing its passage are rearing their
messy head. Fundraising, critical in a state of 30 million, has lagged. And
although two innocent-seeming professors first concocted the measure, it’s
been harder than expected to round up stalwart support beyond the usual
right wing suspects. Meanwhile, the flurry of page-one stories about the
measure has spurred a ferocious backlash from liberal and especially
minority opponents.

So if affirmative action isn’t dead, what’s going on?


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