Clinton's mending is ending it

September 02, 1997|By Clarence Page

WASHINGTON -- When circumstances pressed President Clinton to declare himself on one side or the other on affirmative action, he found a classically Clintonian footing on the middle ground.

''Mend it, don't end it,'' he declared.

That sounded great, the perfect bumper-sticker slogan, even though nobody knew what he meant. Now we are beginning to find out what he meant. His recent efforts to ''mend it'' are essentially ending it.

First came the Clinton administration's August 14 announcement that it is considering a proposal to make it easier for white-owned businesses to qualify for government contracts that originally were set aside for businesses owned by racial and ethnic minorities.

By expanding the groups that qualify for contract set-asides without calling for an expansion in the contracts, the administration offers black contractors a smaller piece of a pie that is not growing in these tight-budgeted times.

The small-business set-aside program was conceived, like other affirmative-action programs in the 1960s, to help black-owned businesses develop and create jobs after centuries of slavery and racial discrimination. Various administrations expanded the program's definition of ''small disadvantaged'' businesses to include a list of racial and ethnic minorities too lengthy to detail here -- plus whites, male and female, if they could make a showing of past bias.

The Clinton administration's proposals would make it easier for whites to make such a showing. Defenders of the proposed change say it would help broaden the base of political support for affirmative-action programs in general.

If everyone is included among beneficiaries of the program, it is reasoned, everyone will support it. But it is also true that if everyone is special, no one is special.

Denver ruling

That point is underscored by U.S. District Judge John L. Kane's ruling in Denver. He ruled last month that a white construction-company owner became eligible for affirmative action precisely because he had been victimized by an affirmative-action program the Supreme Court had ruled unconstitutional.

The case only applies to Colorado, for now. But, when victimization by affirmative action becomes grounds for a white man to qualify for affirmative action, you can declare the program all but dead.

Then came last week's announcement that the Clinton administration will no longer defend a decision by the school district in Piscataway Township, N.J., to lay off a white teacher rather than a similarly qualified black one in the interest of racial diversity when it had to reduce its staff by one person.

By taking the white teacher's side in the Piscataway case, the Clinton administration is giving up the fight before the battle has begun.

Under Deval Patrick, Mr. Clinton's former top civil-rights enforcer, the administration argued that the layoff of a white teacher in the interest of maintaining racial diversity was legal under existing laws and Supreme Court decisions. Its new position is almost identical to that of the Bush administration, which opposed affirmative action in this and just about every other case.

Both cases show a classically Clintonian effort to carve a middle ground that pleases everyone, but, in effect, concedes important arguments to opponents of the programs.

The administration's new Piscataway argument holds that affirmative action should rarely, if ever, be used as a basis for layoffs. Unlike general hiring and promotion programs, the administration argues, layoffs involve specific people and impose tangible hardship on those who are laid off.

Still, after undercutting its own legal ground, the administration clings to the argument that preferences to minorities in hiring and promotions is desirable and legally justifiable, even when there is no evidence of past discrimination.

In fact, this is a case that never should have been a case. While the media and others tend to argue that the two teachers were identical in every way but race, no two people are perfectly identical.

The school district could have chosen any number of reasons -- or no reason at all -- for laying off one instead of the other. Instead it announced to the world that it had made its decision based on race, which invited a lawsuit -- which is precisely what it received, even though the white teacher was later called back to work. With friends like the Piscataway school district, affirmative action hardly needs enemies.

Now the Clinton administration has conceded an important piece of legal ground by defending diversity as sufficient justification for a hiring, but not for a layoff. In other words, it is saying that racial preferences are OK, as long as no identifiable individuals are inconvenienced.

Civil-rights law used to be argued on firmer moral ground than that. But the political ground has shifted. White folks increasingly think black folks have gotten enough breaks. It is getting harder to distinguish the friends of affirmative action from its enemies.

Mr. Clinton should embrace a new slogan: If you can't support it, don't contort it, just scrap it. It would not be very catchy, but at least it would be honest.

Clarence Page is a syndicated columnist.

Pub Date: 9/02/97

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