The Backlash Wars

FROM 1955 TO THE MID-1970S, the high-water mark of the judicial activism inspired by the Warren Court, the Fifth U.S. Circuit Court of Appeals in New Orleans effectively remade the South. In ruling after ruling, its judges used law, reason and a fierce passion for justice to bury Jim Crow across the Old Confederacy. But the glory days are over, and Judge John Minor Wisdom, the Fifth's intellectual leader, is now 90 and in semiretirement. Last week, in a decision some saw as a reversal of the court's proud tradition, a three-judge panel of Reagan and Bush appointees took dead aim at the long-established use of racial preferences to achieve diversity in university admissions. "This is the A-bomb," said Mark Yudof, former dean at the University of Texas Law School, the defendant in the case. "Once you say race can't be taken into account, what is the law?"

The affirmative-action debate, smoldering for years, is flaring up again--just in time for the 1996 election. Although the new ruling affects only Texas, Louisiana and Mississippi, few doubt that it poses a direct challenge to the U.S. Supreme Court's decision in the 1978 Bakke case (chart). Bakke said universities could use race and gender as factors in admissions. But the majority was only 5-4, and the Supreme Court has since moved steadily rightward. In recent years, moreover, conservative critics have chipped away at the very idea of race-based policies; politicians, sensing rising white resentment, have repeatedly attacked the use of quotas in any context. Affirmative action is now being dragged into politics in an electorally crucial state: California, whose voters will almost certainly get the chance to eliminate the state's race- and gender-preference laws this November. If the Supreme Court follows the election returns, the Cali-fornia vote may be a prelude to a full-dress review of affirmative action's constitutionality--making it an event of national proportions.

The controversy will go presidential as well, since Bill Clinton and Bob Dole are taking opposite sides. To cite one specific, Clinton gingerly backs continuing minority preferences in federal contracts, while Dole has cosponsored a pending bill to eliminate them entirely. Backers of the California initiative, known as the California Civil Rights Initiative (CCRI), said Dole would campaign for their cause at a weekend rally in Orange County. The Clinton administration, meanwhile, reacted to last week's decision with notable caution. Although Associate Attorney General John Schmidt said the ruling was simply "wrong," another senior official told NEWSWEEK that the case "will spark a lot of nervous discussion" at Justice and the White House. "Any big news about affirmative action is bad news for Bill Clinton," said Terry Eastland, a conservative intellectual who served in the Reagan Justice Department. "It brings to the surface an issue on which a majority of Democrats--not just a majority of Americans--disagree with Clinton."

Despite its disarming title--a "civil rights initiative" could fool unwary voters--CCRI is an attempt to end 20 years of painful progress toward equal opportunity. It would repeal affirmative-action rules for state and local government employees, and it would end the practice of "setting aside" a share of government contracts for business firms owned by blacks, Latinos and women. It would also end the mandate to promote "diversity" in the sprawling state university system. Its most conspicuous champions are Gov. Pete Wilson and Ward Connerly, a Wilson ally on the board of regents of the University of California, whose nine campuses include Berkeley and UCLA. The UC regents have already outlawed racial preferences; CCRI would extend the ban to the 21-campus Cal State system and community colleges. Connerly, an impassioned critic of race-based policies, is black. "This debate about affirmative action is not just about preferences," he says. "It's about that raw nerve of America we call "race.' Are we going to continue to believe that blacks by definition are disadvantaged? As a black man, I say no."

Connerly admits that ending racial preferences will probably lead to a "precipitous" drop in black enrollment within the UC system. (UC's student body is now 4 percent black and 14 percent Latino; Asian-American kids would be the likely big winners.) But the debate is turning nasty. The Los Angeles Times recently disclosed that some regents--Connerly was not among them--for years have used their VIP status to help applicants get into UC, and Connerly has been attacked in bitter terms. "He's married to a white woman," state Sen. Diane Watson complained recently. "He doesn't want to be black." Connerly called Watson "a bigot."

"Reverse discrimination is inescapably unfair, and it is, quite naturally, bound to engender resentment," Pete Wilson says. But if conservatives hope to use affirmative action as a wedge issue in '96, the political questions are: how many whites are mad and how mad are they? The evidence is mixed. A Field Poll in California suggests that CCRI will pass easily in the fall. On the other hand, polls also suggest that California voters don't care much about affirmative action, which last year ranked 25th out of 27 potential issues. The Los Angeles Times recently showed that Clinton, who now leads Dole by 21 points in the state, is not likely to lose many votes because of his support for preferences. But it's early.

How the Supreme Court will read the California returns is anybody's guess. The real issue in the Fifth Circuit's decision, according to Robert Berdahl, president of the University of Texas, is nothing less than "the virtual resegregation" of American higher education. That may be overstatement. But the courts' dilemma is the country's: how to move from the moral clarity of the civil-rights era to the painful ambiguities of its denouement.