Jewish World Review August 21, 2002 / 13 Elul, 5762

Terry Eastland

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Consumer Reports

Will Bush finally 'fix' affirmative action once and for all? | During his presidency, Bill Clinton vowed to mend affirmative action. The latest evidence that he failed to do that comes in the form of a lawsuit filed earlier this month against the federal government. The question the lawsuit raises, however, is whether George W. Bush will do any better than Mr. Clinton did.

Dennis Worth has worked for 24 years in the St. Louis office of the Department of Housing and Urban Development. Routinely rated an excellent employee, he applied for a promotion several years ago - and was denied. Mr. Worth continued to apply and be denied, batting 0 for 12.

As a white male, Mr. Worth noticed that almost always the job he sought went to a minority or female candidate. He concluded that HUD had discriminated against him on the basis of race and sex and that HUD had done so by executing an affirmative action plan favoring minorities and women.

Mr. Worth could have filed a lawsuit seeking to prove discrimination against him and asking for appropriate relief, such as the awarding of a job denied. Instead, he has sued in behalf of all federal employees disfavored by affirmative action plans such as HUD's. The suit asks the courts to end all such plans and require the government to live up to the Constitution's command of equal treatment under the law.

The case illumines how the government has long practiced affirmative action. The Equal Employment Opportunity Commission, which, with HUD, is being sued, monitors all federal employment decisions to ensure that they are "free from any discrimination based on race, color, religion, sex or national origin." Toward that end, it requires all departments and agencies to implement a pre-approved "affirmative employment plan." It is in such plans and their execution that decisions supposedly "free from any discrimination" often are full of it.

Under a 1987 EEOC directive, each agency must identify in its plan instances of "manifest imbalance" of women and minorities in any sector of its workforce. The agency also must establish numerical "goals" to eliminate the "underrepresentation."

The EEOC evidently has a generous definition of "manifest imbalance," since the HUD plan, duly approved by the EEOC, uses goals to correct even the smallest "underrepresentation" of minorities and women. Consider that last year HUD officials found that Asian males represented 3.4 percent of the agency's workforce in the professional job category, with the figure for the comparative civilian labor force being 3.5 percent. The officials declared that mere tenth of a percent a "manifest imbalance" and established preferential hiring and promotion goals.

The 1987 EEOC directive reflected previous Supreme Court decisions upholding race- and sex-based affirmative action. Those allowed for affirmative action to correct gross disparities but not the trivial ones HUD, with the EEOC's blessing, now pursues. Nor is HUD exceptional in that regard.

The decisions informing the 1987 directive also prohibit preferences to maintain parity. Preferences are supposed to be temporary. But HUD, with EEOC's acquiescence, still uses them once the correction has been made and even when favored groups are "overrepresented."

The government has departed from what the Supreme Court said through 1987. But it also has ignored what the court has said since then. And that is the real issue in the Worth case - that the government has failed to comply with pertinent constitutional decisions, the last in 1995. Under those decisions, the government can't systematically favor one racial group over another, as "affirmative employment plans" do. Moreover, the government may use preferences only to remedy its own discrimination.

Worth vs. Martinez puts the Bush administration on the spot. Either it will defend the legally and morally corrupt regime it inherited or it will use the lawsuit as an occasion to reform affirmative action.

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JWR contributor Terry Eastland is is publisher of The Weekly Standard.Comment by clicking here.

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© 2002, Terry Eastland