President Carter's position that racial quotas are unconstitutional has caused a split over the issue within his administration and some frenatic 11th-hour attempts to reverse his decision.
Publicly, some Cabines-Level officials have detended employment and educational systems that reserve a specific number of places for members of minority groups.
Among them is Health, Education and Welfare Secretary Joseph A. Califano Jr., who, along with Housing and Urban Development Secretary Patricia R. Harris and U.N. Ambassador Andrew Young, engaged the President in a spirited debate on the issue on Monday at a Cabinet meeting.
They and other department heads have also submitted strongly worded memoranda to the President arguing in favor of numerial goals in affirmative action programs.
But they have also stressed that they do not support racial quotas that are met by the admission of unqualified applicants. What they support they variously define as "goals," "benchmarks" or "numerical measures."
The arguments have been presented so forcefully that high officials of HEW say they have alieniated themselves with the Justice Department.
Now, amid increasing indications that the administration policy will remain opposed to racial quotas, officials directly responsible for affirmative action programs are voicing concern about the potential impact in hopes of influencing a reversal of Carter's position.
They claim that any administration policy statement that casts doubt on the use of numerical goals in affirmative action programs would bog down the programs in legal challenges and sciously compromise negotiations for new ones.
Moreover, if the White House takes the position that special admissions quotas and other preferences for racial minorities are unconstitutional, institutions that have resisted affirmative action will use the stand as an excuse for further delaying compliance, the officials said.
Moreover, if the White House takes the position that special admissions quotas and another preferences for racial minorities are unconstitutional-institutions that have resisted affirmative action will use the stand as on excuse for further delaying compliance, the official said.
Expressions of concern about the future of programs designed to overcome past discrimination in education and employment came as the Justice Department prepared to announce its position on the controversial question of reverse discrimination.
The department and the White House are nearing completion of a legal brief to be filed later this week with the Supreme Court in the case of Allan Bakke, a white applicant rejected for admission to the University of California medical school at Davis.
Bakke has alleged that a number of less-qualified blacks, Hispanies and Asian-Americans were admitted ahead of him under a special quota system.
Administration sources said yesterday that although the brief is still undergoing revision, the final version will stand in opposition to any system that reserves a precise number of places for members of minority groups.
A Justice official said work on the brief continued last night and that it is doubtful that it will be printed in time to be presented to the high court today, as predicted earlier by Attorney General Griffin B. Bell.
A Health, Education and Welfare Department official directly responsible for affirmative action under Title Vl regulations said. "We're negotiating hundreds and hundreds of affirmative action plans. Any chink in that armor - any statement casting doubt on affirmative action - would set us back tremendously."
The official, citing expressions of animosity by the Justice Department, requested anonymity, and said he is not even certain what the final draft of the brief will argue.
But he said that without specific numerical goals, there is no way to measure progress in overcoming past discrimination: "Every affirmative action plan we have - voluntary and compulsory - will be challenged. They will be bogged down in litigation."
Another official directly involved in affirmative action in employment said a brief questioning the constitutionality of numerical goals would have "a chilling effect on all of the government's affirmative action programs, in which it has invested half a billion dollars."
The official said the courts so far have been "generous" in their interpretation of the constitutionality of affirmative action programs, and added. "We cannot see that being reversed."
The chairman of the U.S. Civil Rights Commission, in a memorandum to Justice, argued that the impact of the Bakke case could be even broader.
"The (California Supreme Court) Bakke decision, if not overturned, may undermine the objectives for which the 14th Amendment and a whole list of civil rights laws were enacted," said Arthur S. Flemming.
The Educational Testing Service in Princeton, N.J., made an analysis of minority enrollment in law schools, and found that minority admission would frop 60 to 80 per cent if race or ethnic identity were ignored in admissions policy.
Franklin R. Evans, who conducted the study, said in a telephone interview that blacks, who make up 12.6 per cent of the age group, comprise 5.3 per cent of law schools enrollments. If admissions were based solely on test scores and grade averages, he said, the black enrollment would drop to 1 or 2 per cent.
He said similar results were found in a study of medical schools by the Association of American Medical Colleges.
The solicitor general's brief, more so than other amicus curiac briefs filed by past administrations will be viewed as a definite statement of policy, and it is even being viewed by some quota supporters as potentially "determinative" in the Supreme Court's deliberations.
"This is an area in which government policy is of tremendous importance. It will have gigantic impact on what the court does," said one lawyer close to the case.
Oddly, the President did not personally become drawn into the delibcrations until as recently as two weeks ago.
Originally, according to administration sources. Bell planned to stay out of the controversy, leaving the preparation of the brief to Solicitor General Wade H. McCree Jr. and Drew s. Days III, assistant attorney general in charge of the Civil Rights Division. Both are black.
But as pressure from the civil rights movement and the Congressional Black Caucus increased, Bell became enmeshed in the political considerations of the case and soon concluded that it would be impossible to take a position that would satisfy both sides on the issue, sources said.
Two weeks ago, Bell met with Carter and the two men concluded then that they would have to make the final decision on policy. It was then that members of the WHite House staff first became involved in the rewriting of the various drafts of the brief, sources said.
But in spite of the political liabilities of taking a stand on either side, a White House source said, the issue has yet to have been brought up in the regular morning political meeting chaired by Hamilton Jordan, Carter's chief political adviser.