Getting Questions Right

NEVER answer a question with a question.

If playing one ambiguity off against another makes for poor grammar, it makes for even worse public policy. The solutions to society's problems need not be sample, but if government provides no answers, it is no government--or at least bad government And nowhere is strong governmental guidance more important than with burning, divisive social issues such as racial or sexual discrimination, without federal leadership, progress toward equality for all will stagnate in the face of countless local battles.

To the extent that affirmative action programs have helped reverse the impact of discriminatory hiring practices and few would argue that some progress has not been made they have succeeded because of strong federal support for such measures in the face of local indifference, or outright hostility. But the Reagan Administration has not only repudiated its leadership role in advancing equal opportunity. It has also actively worked to undermine strong historical and legal precedents for affirmative action.

What about Blacks and women?

What about white men?

The Birmingham, Alabama police and fire departments didn't look like the rest of Birmingham. While the city was 54 percent Black, and, presumably, about 50 percent female, its police and firefighting forces were almost monolithically white and male. The city was taken to task by the Justice Department for a pervasive "pattern and practice" of discrimination against Blacks and women. The court-ordered affirmative action plan, which became law in 1981, called for numerical goals to ensure the hiring and promotion of qualified individuals from the disadvantaged groups.

But 10 white, male members of the police and fire departments are now suing for reverse discrimination, claiming they were unfairly denied promotions because of the court-mandated plan. They argue that less-qualified women and Blacks were awarded the promotions to meet "numerical quotas" net by the courts. And just last week the Reagan Justice Department, which itself signed the 1981 court decree calling for preferential hiring, entered the suit on the side of the male plaintiffs. Although the department states it does not yet know if the charges to reverse discrimination are valid, it stands solidly behind their attack on quotas. William Bradford Reynolds, assistant attorney general for civil rights, blithely explains: "We always side with those people who claim they have suffered discrimination on account of race."

What about remedial action?

What about seniority?

Like Birmingham's, the Boston police and fire departments were not representative of the population they serve. Finding past discrimination, the courts ordered a preferential hiring plan. All went more or less smoothly until Proposition 2 1/2 slashed city revenues, forcing layoffs in the departments. Under the last-in-first-out policies of the police and fire forces, the bulk of the employees who would have lost their jobs due to the cutbacks were the newly hired women and minorities--effectively negating the effects of the affirmative action plan. When the department altered its seniority plan somewhat to preserve some of the effects of the affirmative action plan, several white officers sued for reverse discrimination. The Reagan Justice Department filled in support of the white officers.

HOW ENCOURAGING that the Reagan regime has taken an interest in affirmative action, but how tragic that it has concerned itself with the wrong side of the coin. Affirmative action is not a discretionary tool to be employed at whim; rather, it represents the best available legal remedy for past and current discrimination that has severely eroded any true measure of equality in the American economy. But in both word and deed, the Reagan Administration has seriously undermined the legitimacy of affirmative action nationwide.

While seniority plans have been considered somewhat immune from affirmative action measures, the Birmingham program now under attack is a typical remedial hiring program. Although the plan does include the use of quotas--the most extreme and most controversial affirmative action method--those numerical goals have repeatedly been approved, and often mandated, by the courts. Typically, they are applied where less stringent measures have failed to bring about change.

The white officers to date have brought at least six legal challenges against the city's affirmative action plan, all of which have failed. They are, of course, within their legal rights to launch yet another assault, but the Justice Department is under no obligation to join them on the warpath.

If the Reagan Administration was under any obligation in the Birmingham case, it can only be to support the city and come down squarely against the rising calls to reverse discrimination that have grossly distorted the purpose and meaning of affirmative action.

In the face of continued widespread discriminatory hiring patterns and practices, it is no wonder that women and minorities find it hard to take seriously the complaints of white males. No affirmative action plan--including Birmingham's--has ever sanctioned lowering standards for women and minorities; instead, they call on employers to speed the placement of qualified female and minority applicants where it has been found that past discriminatory treatment has excluded them from these jobs. Even under the Birmingham program--which has successfully improved the composition of the city's police and fire fighting forces--whites continue to be hired and promoted in greater numbers than Blacks and women.

For the Justice Department to throw its weight behind what is a largely spurious charge is nothing short of irresponsible. In a speech at Harvard earlier this week, Eleanor Holmes-Norton, chairman of the Equal Employment Opportunity Commission under Carter, accused the Reagan Administration of "escalating the drumbeat" of reverse discrimination charges. Her attack is well grounded--the Administration has sided with whites claiming reverse discrimination in suits in Detroit, Memphis, and New Orleans in addition to the Boston and Birmingham cases.

By adding fuel to the fire reverse discrimination, the Administration threatens to reopen the painful civil rights battles of the 1960s and 1970s. Former Birmingham mayor David Vann told The New York Times that most of the city's population--Black and white--had accepted the preferential hiring plan as fair until the Justice Department reversed its position, saying "what was right is now wrong."

In addition, attacks on the plan can only work to undermine progress toward affirmative action elsewhere: caught between the dual threats of discrimination suits by whites if they do, and by women and minorities if they don't, most employers will probably seek to avoid the issue of fair hiring practices entirely.

AFFIRMATIVE ACTION was not intended to be either perfect or permanent. It has evolved, through countless legal battles, is the only workable means of redressing past discrimination in a timely manner. To assert, as the Reagan Administration implicitly does, that the United States has arrived at such a harmoniously just state that continued remedial action is no longer necessary would be laughable were it not so sinister. As Norton states. "The fact is that the new equality in American life is a function of the new remedies." Take away the remedies, prematurely, and persistent racial and sexual discrimination--now, under heavy assault--will enjoy a renaissance.

The Reagan Administration's stance is malicious because it spotlights, the controversial and often imperfect faces of affirmative action without offering any constructive alternative; it tenaciously upholds rights as previously defined by the system while wholly ignoring the rights of those who have been excluded from the system entirely.

Rights-based 'criticisms of affirmative action are not new, nor are they specious. Recent years have witnessed heightened debate from those who believe society can never deviate from absolute race-and sex-blind treatment--even to reverse the effects of past discrimination.

Such legal purism may be appealing in the abstract, but it is both unrealistic and inadequate in the face of the reality of America's history of racism and sexism. And together with those whose distaste for affirmative action is less ideologically motivated, these objections indicate the limits of American commitment to full equality.

Affirmative action is seen as acceptable, even desirable, but only so long as it does not harm a single hair on a single white male head. Given the sweeping, long-term effects of past discrimination affirmative action under such strictures would be tantamount to no affirmative action at all, If our society is so shortsighted as to be unwilling to undergo limited short-term departures from absolute "equal treatment" for even so important a goal as racial and sexual equality, then social justice for all-but-the-most powerful does not stand much of a chance in this country.