Debate over policies focusing on race, ethnicity, and gender has rocketed to the top of the political agenda, and the escalating assault on affirmative action could have broad ramifications for school districts, experts say.
In the past few months, calls for eliminating or curbing such policies at the federal and state levels have multiplied:
- Prominent Republicans, including candidates for the party’s Presidential nomination, have called for jettisoning affirmative action. Sen. Bob Dole of Kansas, the Senate majority leader and a Presidential hopeful, has said he will introduce legislation prohibiting race and gender preferences.
- President Clinton has ordered the White House to undertake a review of all federal affirmative-action policies.
- A subcommittee of the House Economic and Educational Opportunities Committee was scheduled late last week to hold the first in a series of hearings as part of a comprehensive review of federal policies on affirmative action.
- In California, a proposed ballot initiative would ban preferential treatment based on race or gender. A member of the board of regents of the University of California system has proposed eliminating race and ethnicity from consideration in admissions, hiring, and contracting.
- Six state legislatures are considering bills that would curtail or eliminate affirmative-action policies in public employment and contracting.
- Several pending court cases involving affirmative-action programs also are being closely watched.
Until legislation actually passes and courts reach decisions in the key cases, it will be difficult to gauge the effects of the debate on school districts, experts say.
Most urban districts now have extensive affirmative-action plans covering personnel, contracting, and purchasing. Many districts voluntarily consider race when assigning students to schools, to insure racial balance.
And the controversy over admissions policies in higher education could affect students’ educational prospects.
“If the world were all nicely balanced by race and income, then affirmative action might not even be an issue,” said Michael Casserly, the executive director of the Council of the Great City Schools. “But that’s not the way the world looks.”
‘Out of Hand’
Proponents of affirmative action contend that continuing discrimination and inequality of opportunity make it necessary to give preferential treatment to members of minority groups and women. They note, for example, a federal commission’s recent finding that a “glass ceiling” remains firmly in place in businesses, suggesting limits on the advancement of women and minorities into top management jobs.
Opponents of such policies argue that they have outlived their usefulness, failed to benefit the neediest people, stigmatized members of minority groups, discriminated against nonminorities, and undermined systems that should be based on merit.
Clint Bolick, the vice president of the Institute for Justice, a libertarian public-interest law firm in Washington, has worked with Republican leaders to draft proposed federal legislation that would replace affirmative action based on race and gender with policies based on economic disadvantage.
Mr. Bolick said his brother and sister-in-law, who live in San Francisco, were allowed to choose how to identify their children, who are white and Filipino. The parents’ decision opened different options for the children’s educations, he said.
“The fact that skin pigmentation and ancestry determine opportunity in 1995 is head-spinning,” Mr. Bolick said.
“Poverty respects no color,” added Ward Connerly, an African-American regent of the University of California who has proposed abolishing affirmative-action programs in the university system. Mr. Connerly, who supports taking economic need into account, said he does not favor a system based on grades and test scores because so many minority students attend poorly financed and staffed inner-city schools.
Federal Moves
The arguments over affirmative action cover a broad range of policies and practices.
A case involving the Piscataway Township, N.J., school board has become a lightning rod. To promote diversity, the board in 1989 laid off a white teacher and kept a black teacher with identical seniority and performance reviews.
Initially brought by the U.S. Justice Department under President George Bush on behalf of the white teacher, the case attracted attention when the Clinton Administration reversed the government’s position and backed retaining the black teacher. (See Education Week, 9/14/94.)
The case is pending in a federal appeals court.
Albert Shanker, the president of the American Federation of Teachers, said his union believes the Piscataway Township board was wrong. “A person should not be fired on the basis of race,” he said in an interview last week.
Race-conscious policies have had a major impact on K-12 education, Mr. Shanker said.
Though the union supports some types of affirmative action, he criticized a desegregation agreement in Cincinnati that focuses on race and student discipline. It calls for collecting data on the race of teachers and students involved in discipline cases.
Mr. Shanker also faulted the investigation last year by the U.S. Education Department’s office for civil rights of Ohio’s proficiency test for graduation. The office looked into charges that the test violated the civil rights of minority students, who failed it in disproportionate numbers. The agency and the state reached an agreement that continues the use of the test while striving to insure that all students are adequately prepared to take it. (See Education Week, 10/12/94.)
Educators Briefed
“Affirmative action” came into common usage in the 1960’s, when Presidents issued a series of executive orders requiring businesses with federal contracts to establish goals and timetables for hiring minorities. The Civil Rights Act of 1964 extended regulations on equal-employment opportunities to public and private employers with more than 15 workers.
Over the years, the term has been used more broadly to refer to policies that focus on race, ethnicity or gender.
A report by the Congressional Research Service in December found about 160 regulations and programs requiring affirmative action throughout the U.S. government. These programs and policies are the subject of the review ordered by President Clinton.
Civil-rights activists have rallied to defend such programs.
“The battle has just begun,” said William L. Taylor, a prominent desegregation lawyer who is the vice chairman of the Citizens’ Commission on Civil Rights. “I’m not among those who believe that the outcome is foreordained.”
At a workshop on affirmative action during the Council of the Great City Schools’ legislative conference this month, lawyers from the Washington firm Hogan & Hartson briefed superintendents and school board members on the growing political activity.
“There is a tidal wave building in this Congress and in California on rolling back or locking out affirmative-action issues,” said Patricia A. Brannan, a lawyer with the firm.
Federal legislation is unlikely to affect school districts directly, legal experts say, although the escalating political debate could resonate through many communities.
Desegregation Status
Affirmative-action policies in many districts are determined by whether they are under an active desegregation order, have been declared free of the vestiges of segregation, or are pursuing voluntary integration plans.
Districts that have been found to have engaged in discrimination must take race into account when assigning students, teachers, and other staff members to schools, Ms. Brannan said.
State and federal legislation of the sort now being considered would not affect districts now under court orders to desegregate.
But those orders vary widely in how aggressive districts must be in recruiting faculty and staff members, Ms. Brannan noted. “A lot of folks think they are protected when they make those decisions, but you need to look at your court order. It may need to be updated.”
Districts can build into court orders protection for using race-sensitive policies. Judges have viewed affirmative-action policies, as well as the presence of minority members on school boards and in key administrative positions, as evidence that districts do not intend to resegregate.
In 1971, the U.S. Supreme Court ruled in Swann v. Charlotte-Mecklenburg Board of Education that school districts could voluntarily consider race when making student assignments to promote educational benefits. Many districts have since taken steps to insure that schools do not become segregated.
State Action Pending
But legislation pending in California, Delaware, Georgia, Illinois, Pennsylvania, and Washington State could seriously curb district-level affirmative-action policies.
The proposed legislation would limit the ability of districts to engage in any sort of affirmative action, said John Borkowski, a lawyer with Hogan & Hartson. In some states, that could include efforts to achieve a racial balance of students, including the establishment of magnet schools.
And the nationally watched “California civil-rights initiative,” which two university professors are pushing to get on the 1996 state ballot, has been interpreted by the state’s legislative analyst as calling for abolishing voluntary desegregation programs. California now spends about $85 million a year on such programs.
Many districts also encourage contracting with or purchasing supplies from businesses owned by women or minorities.
In the wake of the Supreme Court’s 1989 ruling in City of Richmond v. J.A. Croson Company, many districts have undertaken studies to gather local data to justify preferential contracting with minority- or female-owned companies. Now, another closely watched case before the High Court, Adarand Constructors Inc. v. Pena, is expected to set new guidelines for dealings with minority business enterprises.
The Los Angeles school district encourages arrangements for half of the workers on a school-construction job to be members of minority groups, said Leticia Quezada, a member of the school board. Most of these workers have been Latino, which has prompted complaints that the board should encourage greater diversity.
“I want to be able to protect affirmative action in promotion and hiring and contracting,” Ms. Quezada said. “But we have to be able to defend what we do.”
