Affirmative Action Special Report
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A Debate in the Wrong Forum

The Washington Post
Monday, November 10, 1997; Page A20

The marker that Senate Republicans attempted to lay down last week on affirmative action is the wrong one. The law on this issue is not where they claim, and the confirmation proceedings for Bill Lann Lee, President Clinton's nominee for assistant attorney general for civil rights, are not the right place to stage a fight over it.

The real issue, though, is of course not that; it's what the policy should be. Our own uncomfortable sense through the years has been that great care needs to be used in employing the bundle of techniques that go by the name of affirmative action. Their use needs to be clearly limited. Otherwise, they too easily can end up – and sometimes have – as the mirror image of precisely the kind of routine labeling and treatment of people according to race, ethnicity, etc., that they are meant to expunge. The question is where the limits ought to be. That's where the Senate Republicans who have spoken out in the past few days seem to us to have overreached.

Affirmative action always has been understood to be a temporary practice. Early on, as to some extent still, it was a way of preventing merely token compliance with desegregation decrees, wherein an offending party – school district, police department, private employer – would announce that it no longer discriminated, but nothing changed. It was used as well as a way of hastening the desegregation process to make whoever were the then-current victims of discrimination whole; no waiting for another generation. But there was always an implicit clock attached. The purpose was to erase the lingering effects of past discrimination, not to reserve jobs, places in school and the rest for people of one group or another permanently. That would be to institutionalize the very thing the effort has been to overcome.

In recent years the Supreme Court, having earlier blessed affirmative action, has begun to stress these limits on its use – to narrow the circumstances in which it can be ordered or practiced. We have disagreed strongly with some of its decisions in this regard, but not with the underlying notion that affirmative action needs to be clearly tethered. This is policy that has done considerable good, is still necessary in certain circumstances, but also can be abused, as it has on occasions, and do great harm. The court, understanding this, has left a window for its use. The administration's instinct is to keep that window as open as the law allows. The critics seek to close it insofar as possible. That's the fight.

The critics probably have the better bumper sticker. Who doesn't want to live in a colorblind society, and the sooner, the better? But we don't live in one, and the problem is harder than the simple formulations suggest. There is another problem here. The opponents of Mr. Lee seem to be saying that he, as a legal officer, cannot be confirmed so long as he insists on arguing his clients', that is, his government's and his department's case and his case – that he has to agree in advance not to. No prospective holder of the job for which he has been nominated should be asked or expected to accept such a condition. Do the senators want to create such a precedent? These are easy issues to make political speeches about. In the real world, they get hard, and the hard parts are what the Senate debate last week – on both sides – skipped past.

FOOTNOTE: The suggestion put forward by some Democrats last week that the opposition to Mr. Lee was racist and amounted to some form of Asian bashing, was as reckless, unfounded and disgusting as the same charge when they hauled it out a year ago in a pitiful attempt to divert attention from the actual activities of John Huang. They should be ashamed.

© Copyright 1997 The Washington Post Company

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