SECTION: Section 6;   Page 36;   Column 1;   Magazine Desk

LENGTH: 9122 words

HEADLINE: TAKING AFFIRMATIVE ACTION APART

BYLINE:  Nicholas Lamann;    Nicholas Lemann is a national correspondent for the Atlantic Monthly and author of "The Promised Land: The Great Black Migration and How It Changed America." His last article for the Magazine, about community development, appeared in January 1994.

BODY:
COMPTON IS A MOSTLY BLACK AND hispanic, down-at-the-heels, inner-ring suburb of Los Angeles known to the outside world mainly as the home of rap groups like N.W.A. (Niggas With Attitude -- its first album was "Straight Outta Compton"). On a quiet blue-collar street of tract houses with lawns that need mowing stands, incongruously, a fancy new house with a BMW parked in its bricked front courtyard. There's a touch of Graceland about it, the poor boy's mansion. Inside the front door is a large, round marble-floored entrance foyer overlooked by a balcony. There is a swimming pool in the backyard.

The house belongs to Dr. Patrick Chavis, a 43-year-old obstetrician-gynecologist with an enormous practice comprising entirely poor people on Medicaid. Chavis is where he is because he was swept up in a historical tide. He is a beneficiary of affirmative action. In 1973, he and four other African-Americans were admitted, under a special minorities-only program, to the University of California Medical School at Davis. Although all of the five were good students, medical-school admission is extremely competitive and none would have been admitted purely on the basis of undergraduate records. They got in because they were black, and therefore took the places of five white applicants with better grades and test scores.

One of these was a young engineer named Allan Bakke. He sued the medical school for discriminating against him on the basis of his race. The case went to the Supreme Court, resulting in its best-known decision to date on affirmative action: In June 1978, Bakke was ordered admitted (he too is a doctor today) and the special program was abolished. The Court also ruled, however, that universities could make being a minority a plus factor in their admissions decisions. Bakke v. Regents of the University of California was, then, an endorsement of affirmative action, but an extremely limited one. In the years following the decision, U.C.-Davis medical school admitted fewer blacks. Post-Bakke, Patrick Chavis couldn't have become a poor-folks' doctor.

Four hundred miles north of Compton lies Berkeley, a beautiful small city that is home to what is probably the finest institution of public education in the United States, the University of California at Berkeley. In a drowsy neighborhood of graduate-student housing and organic grocery stores there is a shabby-genteel bungalow owned by one of those left-liberal cause organizations that spring up in university towns, the World Without War Council. The address is 1730 Martin Luther King Jr. Way. Improbably, the California chapter of the National Association of Scholars, an anti-P.C. organization, has its office upstairs in a tiny sublet space.

This year, the bungalow has been the site of occasional media stakeouts because it is the unofficial headquarters of a citizen initiative that would abolish in California precisely what the Bakke decision let stand -- giving some measure of preference to black (and other minority) applicants in the name of promoting diversity. The fathers of the initiative, Tom Wood and Glynn Custred, are middle-aged white academics. Wood, a philosopher by training, has spent most of his career moving from short-term job to short-term job; he is now executive director of the California Association of Scholars. Custred is a tenured professor of anthropology at California State University at Hayward, down the road from Berkeley.

Custred is a friendly man with a fringe of white hair, a broad open face and searchlight blue eyes -- a true believer. He was born in Birmingham, Ala., during the Jim Crow era. His father was a steelworker who became a white-collar employee at the local gas company. When he was 14, the family moved to Vincennes, Ind., and his father got a job as a sales manager for a gas company there.

Over the last few years, Custred told me recently, he began to feel that affirmative action was causing California to go through a process that reversed the journey of his youth: he saw it abandoning the amicable, everyone's-the-same racial climate that he believes characterized Indiana in the 50's and becoming as obsessed with racial classification as the pre-civil-rights South. In 1991, the legislature passed a bill (quickly vetoed by Gov. Pete Wilson) that encouraged the state universities to strive for graduating classes that would reflect the state's ethnic makeup. Worse, there seemed to be no venue for complaints about such things. The press, it seemed to Custred, barely covered affirmative action. Five years ago, Custred came to the conclusion that an initiative would be the only way to get the issue on the public agenda. He began toying with wording he'd lifted straight from Lyndon B. Johnson's monument, the 1964 Civil Rights Act, and finally came up with this:

"Neither the State of California nor any of its political subdivisions or agents shall use race, sex, color, ethnicity or national origin as a criterion for either discriminating against, or granting preferential treatment to, any individual or group in the operation of the State's system of public employment, public education or public contracting." That's almost an exact quote from the Civil Rights Act, except for the one little phrase about preferential treatment.

Suddenly, an Issue
 

To Glynn Custred, racial preference is a great injustice, the most significant departure from the principle of fairness in American social policy. To Patrick Chavis, affirmative action is the one opening into the system for people like him, generally consigned at birth to exist in a poor, self-enclosed black world. For Chavis, that feeling of race as destiny is the great unfairness in American life. Such perceptual stalemates can go on for many years, taking on an odd stability. But in 1995 that is no longer the case with regard to affirmative action. Mainly because of Custred and Wood's initiative, it has abruptly emerged as an issue that could decide the 1996 Presidential election. The country has to figure out who's right.

Custred and Wood were introduced by a mutual friend in 1991. For their first couple of years as a team, they had almost no luck in promoting their cause. Then, while driving home one day, Custred happened to hear William Rusher, the former publisher of National Review, on the radio. He gave Rusher a call and told him about the initiative, and Rusher wrote about it enthusiastically in his syndicated column. This led to the initiative's being taken up by the conservative press: William F. Buckley and Pat Buchanan praised it.

What changed everything, though, was the 1994 elections, which overnight transformed the abolition of affirmative action from a conservative-movement cause into a mainstream one. Three of the leading Republican Presidential candidates, Bob Dole, Phil Gramm and Pete Wilson, all made statements opposing racial preference. (Earlier this month, Wilson issued an executive order dismantling some of California's affirmative-action programs.) President Clinton publicly ordered up an internal review of affirmative action, something no previous President has done -- which, at the very least, sent a signal of less-than-total commitment to affirmative action. A confidential report prepared for the President and obtained by The Times late last month seemed to be groping for some middle ground -- backing the principle of affirmative action, criticizing some particular programs and expressing empathy for "bystanders," that is, white men. The President is expected to announce the result of his Administration's review in a broad thematic speech before the end of the month.

The issue cannot be an easy one for Clinton. He probably can't win re-election without carrying California, because the South has become so solidly Republican. Custred and Wood's initiative, which is overwhelmingly popular in early statewide polls, could have the effect of making the '96 Presidential campaign in California a referendum on affirmative action: the California Civil Rights Initiative will probably face the voters on the same November day that Clinton does.

Earlier this spring, Clinton told the California state Democratic convention that he would countenance "no retreat" on affirmative action. But what he didn't do is come out against the initiative. If he does, he will have to sell California's voters on a position they don't like. However, if he endorses the initiative he will infuriate the Democratic base (in particular Willie Brown, the Speaker of the State Assembly). Thus, the initiative has gone, in a flash, from nowhere to the White House.

The Long, Liberal Silence
 

Beyond just the peculiar way the cards have fallen, there is an enormous well of pent-up hostility to affirmative action. The morally elegant vision of a color-blind society that Glynn Custred wrote into the initiative has the same animating power today that it did when used by the Rev. Dr. Martin Luther King Jr. in the 1960's. In addition, there is by now a vast trove of affirmative-action horror stories. Is there a white person who has never been told that the reason some desirable billet or other is unavailable is that it has been reserved for minorities under an affirmative-action program? Or who hasn't been privy to sorrowful, head-shaking conversation about this or that shockingly poor performance of black beneficiaries of affirmative action?

The opponents of affirmative action have been honing their arguments for a good 30 years. While the term and the programs associated with it embrace women and Hispanics, in politics and in the public mind affirmative action remains essentially a black-and-white issue. The opponents have learned not to make the argument too forcefully that affirmative action is unfair to white people. Instead, the anti-affirmative-action position now has prominent black spokesmen like Shelby Steele, the writer, and, in California, Ward Connerly, a member of the University of California Board of Regents. And the case is now built to a great extent on a rhetoric of what's good for blacks: affirmative action, opponents insist, does nothing to alleviate the worst problem in black America, the state of the poor ghettos. Instead, their argument goes, its beneficiaries are the best-off blacks, who, by being put above their academic or career level by affirmative action, are set up for failure in a way that damages their self-confidence and reinforces white prejudices about black inferiority.

A second essential anti-affirmative-action point that has come to the fore in recent years is that affirmative action is the opening wedge of a comprehensive ideology that threatens the basic American creed. If multiculturalism is given full sway, according to this argument, we'll find ourselves living in a society in which all decisions are made on the principle of apportionment to oppressed groups. "A lot of people use the word 'Balkanization,' " Glynn Custred says.

Arrayed against these compelling arguments is a very loud silence, especially from white liberals. Either opponents of affirmative action are patronizingly dismissed, as they were by President Clinton recently, as "angry white males" or they're told that they want to "turn back the clock" to the days before affirmative action, which opponents freely admit. The level of feeling among supporters of affirmative action, especially black ones, is obviously high, but the case for it is rarely laid out. It looks to the opponents as if there is some secret reason for affirmative action that liberals will not reveal -- or no reason for it at all, in which case the supporters are merely people who are afraid of being yelled at by minorities.

As far as the public discourse goes, the next move is affirmative action's supporters to make. They need to acknowledge and confront the other side's position and then to explain why, nonetheless, America should still support affirmative-action programs.

Birth of a Concept
 

How did we get to this peculiar point? Whose idea was affirmative action in the first place? How did it spread? What does it actually consist of? And does it do any good?

The affirmative action trail begins faintly at the time of the Presidential inauguration of John F. Kennedy.

At the Texas State Society's inaugural ball, Lyndon Johnson, the incoming Vice President, was pressing flesh in the receiving line. When a young black lawyer from Detroit named Hobart Taylor Jr. -- known to Johnson because Hobart Taylor Sr., a businessman in Houston and an active Democrat, was a close friend -- came through the line, Johnson pulled him aside and said he needed something. An executive order banning discriminatory hiring by Federal contractors was being drafted for President Kennedy's signature; could Taylor help work on it?

The next day, Taylor holed up in a room at the Willard Hotel with two future Supreme Court Justices, Arthur Goldberg and Abe Fortas, to prepare a document with the not-very-catchy title of Executive Order 10925. "I put the word 'affirmative' in there at that time," Taylor later told an interviewer for the archives of the Lyndon Baines Johnson Library. "I was searching for something that would give a sense of positiveness to performance under that executive order, and I was torn between the words 'positive action' and the words 'affirmative action.' . . . And I took 'affirmative action' because it was alliterative."

The key point about the inception of affirmative action is that it went virtually unnoticed. Executive Order 10925 merged two obscure Eisenhower Administration committees that were supposed to prevent discriminatory hiring -- one aimed at the civil service and the other at Federal contractors -- under the name of the President's Committee on Equal Employment Opportunity. The committee met 12 times. Its main activity was a program called "Plans for Progress," in which big Federal contractors were persuaded to adopt voluntary efforts to increase their black employment.

Although the committee did not exercise much direct power and was not in the news, its basic mission clearly would offend present-day critics of affirmative action, since it was to promote race-conscious hiring. There wasn't any conservative backlash against the committee, because practically no one knew it existed. But as soon as President Kennedy proposed a civil rights bill in 1963, opponents began attacking it as one that would impose racial-quota hiring schemes. During the titanic Congressional debate that followed Johnson's proposing the Civil Rights Act in 1964, quotas were a frequent theme. "The bill would discriminate against white people," said Senator James Eastland of Mississippi. ". . . I know what will happen if the bill is passed. I know what will happen if there is a choice between hiring a white man or hiring a Negro both having equal qualifications. I know who will get the job. It will not be the white man."

The Civil Rights Act, therefore, contained a sentence explicitly disavowing quotas. And, although the law created an Equal Employment Opportunity Commission to prevent job discrimination, the commission was given no powers of enforcement whatsoever, so that it could not promote quota hiring; it was taking away the E.E.O.C.'s enforcement power that prevented a Senate filibuster against the bill and so made its passage possible.

The passage of the Civil Rights Act set in motion a series of events that ended with President Johnson's issuing what is now regarded as the originating document of affirmative action: Executive Order 11246. Bear in mind what was on the minds of liberals at that time. Simply abolishing the South's legal apartheid system -- the thrust of the Civil Rights Act -- wasn't going to solve America's racial problems. There were small urban race riots in the summers of 1963 and 1964 and a large one in Watts in 1965. The gap between black and white was shockingly large. At the time, blacks were almost twice as likely as whites to be poor, twice as likely to be unemployed and more than four times as likely to be illiterate. The voices warning against quotas and reverse discrimination all seemed to belong to Southern segregationists, like Senators Eastland, Sam Ervin of North Carolina, Lister Hill of Alabama, J. William Fulbright of Arkansas and John Tower of Texas. So the anti-quota argument looked like merely a cover for something less legitimate.

The Invisible Milestone
 

The fullest expression of the liberal mood was a commencement address that President Johnson gave at Howard University on June 4, 1965. The key phrase (supplied by the young Daniel Patrick Moynihan) was, "We seek . . . not just equality as a right and a theory but equality as a fact and equality as a result." "Equality of result" has long been used by the opponents of affirmative action as the perfect distillation of the principle they find odious, but Johnson's speech was regarded within the White House as a great political triumph and the phrase generated no objections from the public.

Affirmative action specifically, however -- the originating document, Executive Order 11246, issued on Sept. 24, 1965 -- appears to have been a kind of accident.

The Civil Rights Act made the President's Committee on Equal Employment Opportunity, traditionally headed by the Vice President, potentially irrelevant, because it created several new Government agencies to make sure blacks weren't being discriminated against. In February 1965, Johnson created a new President's Council on Equal Opportunity, to be headed by his vice president, Hubert Humphrey, a lifelong crusader for civil rights; this made Humphrey chairman of a White House committee and a White House council on the same thing.

Johnson ordered Humphrey to come up with a reorganization plan for all the Government's civil rights organizations. Humphrey responded by proposing to abolish the equal opportunity committee but to keep alive the equal opportunity council. The council would be in charge of "community relations" (one of the new functions created by the Civil Rights Act) and of making sure Federal contractors didn't discriminate against black job applicants -- that is, affirmative action.

On June 21, 1965, shortly after his speech at Howard, Johnson approved this plan of Humphrey's. As late as mid-August, it was still on track. Then, in September, Johnson changed his mind. The reason is unknown, but it may have had to do with Humphrey's having made a hard-charging black lawyer named Wiley Branton the director of the equal opportunity council, which raised the possibility of controversial and high-profile civil rights enforcement actions emanating from the White House. A memo from a White House lawyer to Johnson, dated Sept. 20, 1965, lays out a scheme to abolish Humphrey's council entirely rather than give it more power. Community relations would be given to the Justice Department and affirmative action to a new Office of Federal Contract Compliance Programs in the Labor Department. "Humphrey can show his 'bigness' by recommending the dissolution of a group that he heads which has performed its assignment and no longer needs to remain in existence," the memo said.

Humphrey's staff obediently drew up a memo to Johnson designed to make the official record reflect that the whole thing had been Humphrey's idea; Johnson's staff drew up a memo to Humphrey commending him for his statesmanship, and Executive Order 11246, which abolished the two White House equal opportunity groups and is now considered the opening bell for affirmative action, was drawn up and signed. There seemed to be two salient points about the executive order: it wasn't very important and it represented a setback for Hubert Humphrey and the civil rights cause because it did away with everything he headed. The Times first mentioned Executive Order 11246 three weeks after the fact, under the headline "Rights Groups Fear Easing of U.S. Enforcement Role." (By the way, Executive Order 11246 did not call for affirmative action to combat gender discrimination; that was added a few years later after prodding by feminist groups. The original concept of affirmative action was exclusively racial.)

The reason that Executive Order 11246 did, in fact, turn out to be a milestone is that it took affirmative action out of the White House, which is under intense perpetual scrutiny and has a small staff with high turnover, and made it the raison d'etre of a division of the Labor Department. This meant there would be a much larger and more permanent staff devoted to carrying out affirmative action -- a staff with the power to write Federal regulations and with the maneuvering room that comes from the press not reporting on your every move.

Because the end of segregation came in the form of a bill being passed, the country realized it was making a momentous change. The Civil Rights Act of 1964 was furiously debated and examined. Compromises were struck. The result was that by the time the act became law, Americans had consciously made up their minds to take this great step. Executive Order 11246 had exactly the opposite dynamic: it was an invisible milestone that was not debated at all (or noticed, even) before the fact. Given its significance, it was inevitable that it would be publicly debated with Civil Rights Act-like intensity at some point after the fact -- and now we are at that point.

The Meritocracy as a Racial Barrier
 

The original, executive-order definition of affirmative action is that it requires employers only to search aggressively for qualified minority applicants -- through advertising, for instance, or special recruitment efforts. Once found, these new minority applicants would go into the same pool with everybody else and the final selection would be made on a color-blind basis. Almost everybody, including the leading critics of affirmative action and the majority of respondents in polls, claims to support affirmative action if we could stick to the original definition, and most defenders of affirmative action say that it's only the official definition that they're defending.

But there's an enormous problem with putting the official definition into practice. The civil rights revolution occurred at the same time that an even more important change in American society was taking place: the construction -- by liberals, it should be noted -- of a formal meritocracy based on education and standardized testing. This country has always been obsessed with individual opportunity, but before the 1950's there was no system in place that could evaluate and assign a numerical value to every American. At the time that affirmative action began, there was such a system and it judged people mainly on a single criterion, their ability to get good grades in school. (Most standardized tests are designed to predict school grades.)

In a way, the construction of this meritocratic system was good for the civil rights movement because it provided a target to aim at. It's no accident that the string of landmark cases leading to Brown v. Board of Education involved schools; it was the argument that education equals opportunity that dealt the death blow to legal segregation. But in a crucial sense, the numerical, education-based meritocracy was bad news for blacks. It rendered the key affirmative-action concept of creating biracial pools of equally qualified applicants meaningless, because now everybody was ranked serially. And it apportioned opportunity on the basis of performance in the one area where blacks were most disadvantaged: education. For as long as there have been standardized tests, blacks have on average scored lower than whites. As education for blacks has improved, the gap has closed substantially and is now at an all-time low, but it is still large enough that for institutions, hiring and admitting purely on the basis of educational credentials would produce extremely low counts of blacks, and also of Latinos and American Indians. To cite just one example, in 1992 only 1,493 African-Americans had S.A.T. verbal scores of 600 or above -- and 55,224 whites.

The history of affirmative action can be seen as a struggle over the fairness of the modern meritocracy, with minorities arguing that educational measures shouldn't be the deciding factor in who gets ahead and opponents of affirmative action saying that to bend the criteria for blacks is to discriminate unfairly against more deserving whites. The 1964 Civil Rights Act contained an amendment put in by John Tower explicitly permitting the use of standardized tests in hiring. However, the first few important Supreme Court cases on affirmative action -- in particular Griggs v. Duke Power Company in 1971 -- went in the opposite, pro-minority, direction by restricting the use of test scores as screens for employment. (The Court has swung the other way more recently.) Either way, the trade-off is stark and will remain so until black America and white America are on the same educational and cultural footing -- in other words, for generations. If hiring and admission are done purely on the basis of test scores, the black presence will be a fraction of what it is in the population, and bringing it higher requires rejecting some whites who scored better than the blacks who were hired or admitted.

What present-day opponents of affirmative action, smelling victory, don't like to admit is that these are issues capable of generating real confusion in the minds of people of good will. An education-based meritocracy makes its judgments about people before they've ever really done anything, based on a measure, school performance, that depends heavily on who their parents are and what kind of environment they create. People tend to shy away from meritocracy in pure form, or at least to want to sand off its rough edges, because the definition of merit seems too narrow and because it doesn't seem genuinely to offer equal opportunity to everyone. No American institution of higher education is willing to select solely on the basis of (as opposed to mainly on the basis of) merit as defined by grades and test scores.

The Justice Who Couldn't Make Up His Mind
 

The Supreme Court's Griggs decision left a perfect opening for a case filed by a white student who felt he'd been discriminated against in higher-education admissions. It was one thing to limit the use of educational credentials in hiring, but it would seem absurd to do so in admission to a school -- even though it was precisely by departing from strict adherence to educational credentials that majority-white schools were able to register a large increase in black students during the late 1960's and early 1970's.

Robert Klitgaard, a social scientist, calculated that in one year in the 1970's, if affirmative action had been eliminated, the total number of blacks in law school in America would have dropped from 1,539 to 285 -- which presumably meant that the total number of whites would have risen by the same number. In 1971, one of these discriminated-against whites sued: Marco DeFunis, who had been rejected by the University of Washington law school even though his grades and test scores put him ahead of virtually all the black students who were accepted.

DeFunis won his case and entered the law school under a court order. The Washington State Supreme Court reversed the decision and ordered him out. DeFunis appealed to the United States Supreme Court, which stayed the lower-court decision, permitting him to remain, and agreed to hear the case. The Justice who wrote the order keeping DeFunis in law school was William O. Douglas, the longest-serving member of the Supreme Court in American history. Douglas's papers, which have been opened, provide an extraordinary (and heretofore unknown) look at a strong mind blowing its fuses over affirmative action.

Douglas, then 75 years old and the last of Franklin Roosevelt's appointees remaining on the Court, was himself the product of humble origins in the state of Washington; his own meteoric rise had been set off by admission to law school. He had every reason to empathize with Marco DeFunis. At the same time, he was a fiery liberal and champion of the downtrodden who had come down on the side of blacks in every landmark civil rights case.

One of Douglas's clerks, Ira Ellman, wrote him a memo recommending that he vote for the Court to take up the case because "there really was some kind of quota here," which he thought was a wrong that ought to be corrected. The Court did grant DeFunis a hearing and then recessed; in March 1974, with DeFunis only weeks away from his law-school gradutation, the justices began working on their opinions again. It quickly became apparent that Douglas would be the swing vote: four justices wanted to kick DeFunis out of law school while four wanted to order his admission.

Douglas was known within the Supreme Court building as someone who made up his mind about every case instantly and then quickly dashed off an opinion. He had little use for lengthy colloquy or deliberation with his clerks, who barely saw him. But in the case of DeFunis, uncharacteristically, he seemed genuinely torn. Ellman, sensing that Douglas couldn't make up his mind, hesitantly offered to draft an opinion himself -- something Douglas's clerks never did. Douglas told Ellman to go ahead, as long as he didn't circulate the draft to the other justices.

"I don't know about these tests," Douglas told Ellman by way of instruction -- meaning the Law School Aptitude Test. What he was getting at was that perhaps the way to a liberal opinion lay through pointing out that the test (which hadn't existed back in Douglas's law-student days) was biased against blacks. Before putting Ellman in charge of the opinion, Douglas had dashed off some wording, dated March 8, 1974, that said the L.S.A.T. was "by no means objective" and might contain "hidden bias." Ellman obtained data from the Educational Testing Service, however, showing that the L.S.A.T. did not inaccurately predict blacks' grades.

Douglas's early wording strongly opposed reverse discrimination. "The democratic ideal as I read the Constitution and Bill of Rights presupposes an aristocracy of talent, and all races must be permitted to compete for a position in that hierarchy," it said. How, then, to square the circle? Douglas proposed that the law school first admit "those clearly qualified" purely on academic merit and then fill the rest of its places by a lottery.

On March 11, the justices decided privately to declare the case moot. The stated reason was that DeFunis was about to graduate (today he's practicing law in Seattle) and the underlying reason was that no clear majority position on the issue was emerging. But Douglas decided to steam ahead and produce a dissent that would address the merits of the case; as he told Ellman, "I might not be around next time this issue comes up."

On March 21, there was another draft of Douglas's opinion. This one argued that the school should be allowed to admit minorities with lower test scores than whites who were rejected. But the very next day, there was another draft taking a different position: that while "racial classifications cannot be used," universities should discriminate in favor of people from disadvantaged backgrounds.

The following draft, printed up a few days later, showed that Douglas's opposition to racial preferences was becoming firmer. But Douglas still couldn't accept the idea of the law school's admitting people purely on the basis of academic credentials. Another draft was produced, which said, "The presence of an L.S.A.T. test is sufficient warrant for a school to separate minorities into a class in order better to probe their capacities and potentials."

Douglas ordered Ellman to circulate this draft to the other justices. But the next morning, he called Ellman into his office and said, matter-of-factly rather than accusingly, that he actually hadn't wanted the draft circulated, so Ellman should go and retrieve all the copies from the justices' offices. When Ellman came back with them, Douglas told him that from now on he would work on the opinion without any help.

He then wrote one last draft: this time, rather than coming down on one or another side of the case, he came down on both at the same time. He was strongly against reverse discrimination, but insisted that DeFunis had not been discriminated against on the basis of his race when he was denied admission. So, for the first time in all the drafts, he did not order DeFunis admitted to law school. When the Supreme Court printer delivered the opinion to Ira Ellman he said, with a quizzical look, "He changed the bottom line."

The way Douglas got to this final position was by returning to his attack on the L.S.A.T., with greater fury than ever before. It is racially biased, he wrote; its bias justifies reverse bias by the law school; in fact, the L.S.A.T. should be abolished entirely. That Douglas decided to declare the L.S.A.T. biased although he had no evidence that it was is mainly a demonstration that he was intellectually trapped and couldn't find any other way out. He couldn't reconcile his passionate belief in meritocracy with the actual meritocracy's mechanical feeling and its tendency to reward some ethnic cultures far more than others. So he went through every possible feeling one can have about affirmative action in sequence and wound up in effect throwing up his hands.

A year later, Justice Douglas had a stroke and retired from the Court. In 1977, a case almost exactly like that of DeFunis presented itself to the Court: Bakke v. Regents of the University of California. The University of California-Davis Medical School had created a separate admissions pool for minority applicants and rejected higher-ranked white applicants to make room for them. One of these was Allan Bakke.

Douglas's seat on the Court had been taken by John Paul Stevens, but his position as swing vote had been assumed by Lewis F. Powell, a gentlemanly former corporate lawyer with none of Douglas's Whitmanesque pretensions. Powell, unlike Douglas, found a logical route to a decision, but it would be difficult to find a less resounding one on a major issue in the history of the Supreme Court. By a 5-4 majority, the Court struck down U.C.-Davis's racial-quota admissions system and ordered Bakke admitted. Also by a 5-4 majority, however, with Powell on the other side this time, the Court approved the idea of taking race into account as a positive factor in admissions decisions, in order to achieve a diverse student body. The decision may have been a statesmanlike piece of jurisprudence, but in admissions-office circles it is widely viewed as meaning that it's O.K. to reverse discriminate as long as you're not really obvious about it.

The Establishment Embraces Affirmative Action
 

Much of what is now most unpopular about affirmative action occurred well after the heyday of civil rights. The two small Federal affirmative-action bureaucracies established in 1965 -- the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance -- both defined their mission as being to promote affirmative action aggressively. They quickly began to deal with companies in terms of numerical racial hiring "goals."

"The average business guy wants to know what to do," Edward Sylvester, who was the first head of the contract compliance office, told me recently. "You've got to give him numbers. They'd say, 'Tell me what you want and when.' "

Richard Nixon and George Shultz, when he was Secretary of Labor, imposed the Government's harshest, most explicit quota plan ever on building contractors in Philadelphia in 1969; we now know from the diaries and notes of John Ehrlichman and H. R. Haldeman that Nixon thought of the Philadelphia Plan as a wonderful way to pit two key Democratic constituencies, blacks and labor, against each other and endorsed it partly for that reason.

This year's poster child in reverse for affirmative action is Frank Washington, the black millionaire who tried to use the Federal Communications Commission's minority tax certificate program (known in the trade as "Section 1071") in order to make a quick killing for himself and a white billionaire, Sumner Redstone of Viacom. Section 1071 began during the Carter Administration and was expanded during the Reagan Administration. The contract office's current regulations -- 41 Code of Federal Regulations 60.2 -- contain such notorious provisions as a requirement that "effective affirmative-action programs" must include "active support of local and national community action programs and community service programs"-- that is, mandated charity. They were promulgated in 1978 under Jimmy Carter. So were Federal minority set-asides for Federal contractors. "Race-norming," the practice (later outlawed) of not directly comparing the test scores of white and black applicants for Federal employment, was begun in 1980.

Through the years, states and localities by the dozens were creating affirmative-action laws of their own. And even more significant than whatever Government has done has been the massive and largely voluntary adoption of affirmative-action plans by virtually all big institutions. The current conversational meaning of affirmative action is something like "stuff that's done explicitly to help black people" -- the stuff being everything from preferential college admissions to the way news is covered to what's hung in museums to corporate promotion practices. All of this followed from the civil rights movement and President Johnson's embrace of it, but it isn't explicitly attributable to the exercise of Federal power.

Part of what was propelling affirmative action was that it had an interest group behind it, namely minority organizations. Much of their support of affirmative action is standard political behavior. Black people don't control America, though. All along, the overwhelmingly white Establishment has supported affirmative action and that is what accounts for its durability. The Establishment's reasoning, never openly stated, would have gone something like this: Sure, affirmative action generates white victims of reverse discrimination, but there aren't very many of them and they don't suffer too greatly. They go to Colgate instead of Cornell. Big deal. The most clearly outstanding whites -- the people the meritocracy set up to spot and train for leadership -- don't suffer at all. In return, we are able to take some of the edge off of what has been the most explosive issue in our history, the one that set off our bloodiest war and our worst civil disturbances. We create an integrated authority system. We give blacks a stake. It promotes the peace. In addition, case by case, it creates a feeling of doing something to correct our worst historic wrong.

All through the 1970's and 1980's, this quiet but firm Establishment support for affirmative action worked to quell incipient revolts against it. Richard Nixon campaigned against quotas and then did not abolish affirmative action. So did Ronald Reagan and so did George Bush.

The closest that affirmative action came to being done away with during the Reagan-Bush years was in 1985, after Reagan was overwhelmingly re-elected and the confrontational Donald Regan succeeded James Baker as the White House chief of staff. A group of conservative officials, including Edwin Meese, W. Bradford Reynolds, the Assistant Attorney General for Civil Rights, and William Bennett, had been talking for years about replacing Executive Order 11246 with something similar to the California Civil Rights Initiative. In the second term, they decided to renew the push. Their problem was that in early 1985 Raymond Donovan, the Secretary of Labor and a fellow movement conservative, had resigned and been replaced by Bill Brock, a moderate who wanted to protect the Office of Federal Contract Compliance.

The anti-affirmative-action group made the mistake of overplaying its hand. While Brock was away on a lengthy foreign trip, they presented their idea to Reagan, who seemed interested. But Donald Regan felt that he and Brock were being circumvented and put a stop to it. The attempt on the life of Executive Order 11246 was leaked to the press and the resulting outcry saved the executive order.

"The internal argument was, 'We're expending a lot of political capital on this issue.' " Reynolds recalled not long ago. " 'It's getting in the way of other things that are more important. The less problems for Reagan the better. Let's don't carry this further now. We can always revisit it later.' "

Soon afterward, Reagan nominated Reynolds to be Associate Attorney General and, after a rough hearing, the Senate Judiciary Committee refused to recommend him for the position because of his opposition to affirmative action. In 1990, C. Boyden Gray, an aide to President Bush, tried to get Bush to sign an executive order banning racial preferences in employment; again, there was a leak to the press followed by a backing down. In 1991, an Assistant Secretary of Education named Michael Williams announced that the Government would be eliminating scholarships that were reserved for black students only. After another immediate controversy, Bush reversed the policy.

These public disputes aside, the reigning assumption of elected officialdom, including Republican officialdom, was pro-affirmative action. Bob Dole has recently come out against preferences, but for many years he supported it. When she was Secretary of Labor, Elizabeth Dole held a ceremony to celebrate the 25th anniversary of Executive Order 11246 and presented a plaque to Edward Sylvester, the first head of the contract office. Ten years ago, while working on a magazine profile of Newt Gingrich, I watched him work hard to get gate assignments at the Atlanta airport for a new airline, for the sole reason that its founder was black. Then he called the White House and suggested that Reagan mention this in his inaugural address. Such behavior by a rising leader of the Republican right was completely unremarkable at the time.

The Establishment clearly believed that affirmative action had become a permanent part of the American landscape. There was a steady diet of Supreme Court cases; university administrators and corporate officials kept modifying and fine-tuning their programs. What the Establishment didn't quite grasp was how bad affirmative action looked from the outside -- the way it seemed all-pervasive and undemocratic. A review that Senator Dole recently ordered up from the Library of Congress found that there are 162 separate Federal affirmative-action programs, and that leaves out all the state, local and private ones.

It's arguable that there wasn't a single law passed in Congress that truly endorsed the broad principle of affirmative action until the Civil Rights Act of 1992. Way back in the 1960's, liberals got used to the idea that you could never get Congress to do the right thing on racial matters, so the way to make public policy was through the judicial and executive branches. These were the venues through which affirmative action was pursued. So down through the decades, the muscles that liberals would have used to make a public case for affirmative action atrophied -- and the conservatives' were becoming magnificently buffed and toned. What's good about the current crisis for affirmative action is that it means a debate will take place that should have taken place long ago; if it had, affirmative action wouldn't be so vulnerable now.

The Case for Affirmative Action
 

What would the country look like without affirmative action? According to its opponents, a gentle notching downward would take place in black America: black students who now go to Harvard Law School would go to Michigan instead and do very well; black students at Michigan would go to Louisiana State, and so on. The net impact would be small. And maybe then we would get to work on the real issues, like the poor quality of many all-black urban public schools.

The other possibility is that there would be an enormous decrease in black representation everywhere in white-collar (and also blue-collar) America, with a big, noticeable depressive effect on black income, employment, home-ownership and education levels. The percentage of blacks in managerial and technical jobs doubled during the affirmative action years. During the same period, as Andrew Hacker pointed out in his book "Two Nations," the number of black police officers rose from 24,000 to 64,000 and the number of black electricians from 14,000 to 43,000. If affirmative action were entirely abolished, does anyone really believe the Government would undertake, say, an expensive upgrade of education for blacks as a more meaningful substitute?

Black America is still a substantially separate world. Blacks are by far the most residentially segregated ethnic group and the least likely to intermarry. Without affirmative action, the gap would surely become even more pronounced. The lack of faith in the fairness of the system that is so much more a part of the black world than the white would only increase.

The goal of affirmative action is not to reject the spirit of integration in favor of race-consciousness but to bring blacks into the mainstream of national life. The ironic result of affirmative action being abolished could be an increase, not a decrease, in the kind of black demands for reparations and mandated percentages of the action that whites find so annoying: if you're out of the system completely, then you don't seek access to jobs and school places. You just want more resources.

The opponents tend to treat affirmative action as a unitary evil: all the many varieties are equally wrong and disastrous, and the most extreme Frank Washington-type excesses are a fair representation of the totality of the phenomenon. In fact, the country is full of affirmative-action plans that work pretty well and affirmative-action beneficiaries whom people like. Clifford Alexander, who was head of the Equal Employment Opportunity Commission, was Secretary of the Army in the Carter Administration; he says that the first time a list of people being promoted to general landed on his desk, he sent it back, demanding that more good black candidates be found. One of these was Colin Powell, who recently departed from his usual sphinx-like silence on public issues to make a speech defending affirmative action. In California, the psychic center of the affirmative-action debate is undergraduate admissions to Berkeley; the initiative literature uses the statistic that "the dropout rate for students admitted under affirmative-action programs often runs as high as 75 percent." According to the university, 60 percent of its black students (there are only about 200 in each class of 3,000, by the way) graduate within six years, as against 84 percent of white students. Rather than Berkeley cruelly taking its black students up past their "level," it has a black graduation rate 50 per cent higher than the national average.

It's entirely possible, indeed likely, that the more egregious forms of affirmative action can be jettisoned. This is already happening: the notorious F.C.C. minority tax certificate program was legislatively abolished this year. As we begin the process of thinking about the remaining bulk of affirmative- action programs, it's important to keep in mind three core principles.

First, because the country is so segregated, the natural default position for white people is to have no contact at all with blacks. It's healthy to have some way of pushing people, as they make hiring and contracting and admissions decisions, to go far enough past the bounds of their ordinary realm of contacts to find black candidates. Even the opponents say they want this, but it won't happen if it's not required because the black-white social gulf is so great.

Second, lawsuits and regulations are not the ideal venue for affirmative action. Liberal victories won there tend to be Pyrrhic: they generate enormous public resentment that leads to their eventual demise and gives the whole cause of trying to improve race relations a bad name. A legislation-based affirmative action would perforce be one that was spiritedly debated publicly. Liberals would have to make their case in a way that would convince people, and the result would be compromised-over programs with sustainable public support.

Third, we should recognize that the meritocracy is structured in such a way that one criterion, educational performance, is overweighted and has become too much the sole path to good jobs and leadership positions. It shows how far we've gone in this direction, how much we accept the present social arrangement as the natural order of things, that affirmative-action plans governing school admissions and entry-level hiring for 22-year-olds are so often criticized as constituting "equality of result." Rationally, a first job or a place in school is an opportunity; it's only because we sort people so firmly so early that it looks like a result. There is a real difference between affirmative-action plans that seek to divide up the spoils and plans that seek to get African-Americans into a position where they have a chance to prove themselves through individual performance.

Every child born in America doesn't have access to good schools and doesn't have parents who encourage study. Many blacks go to the worst schools and live in the toughest family circumstances. To argue that by late adolescence black people have run a fair competitive race and that if they're behind whites on the educational standards they deserve to be permanently barred from the professional and managerial classes is absurd. It constitutes not just a denial of opportunity to individuals but a denial of talent to the society.

The Case Of Dr. Chavis
 

Allan Bakke, after graduating from medical school, did his residency at the Mayo Clinic in Minnesota. Today he is an anesthesiologist in Rochester, Minn. Bakke doesn't speak to the press and he didn't respond to my request for an interview. He does not appear to have set the world on fire as a doctor. He has no private practice and works on an interim basis, rather than as a staff physician, at Olmsted Community Hospital.

Patrick Chavis, who took Allan Bakke's place at U.C.-Davis med school, fits the stereotype of the affirmative-action beneficiary in one way: as he freely admits, he would not have been admitted strictly on the basis of his grades and test scores, though they were good. In other ways, though, he does not fit. He is not a product of the cushy black upper class: he grew up in South Central Los Angeles, the eldest of five children of a welfare mother who had migrated to California from rural Arkansas. Chavis first met his father three years ago, when he was 40. One day when he was in high school, one of his teachers used the word "indigents" in class. That night, upset, he asked his mother if that word meant people like them. "Who else do you think it means?" she asked him.

Another way in which Patrick Chavis doesn't fit the stereotype of the affirmative-action beneficiary is that he doesn't give the impression of being tormented by self-doubt over whether he really deserves to be where he is. If anything, he seems to assume a superiority over his white medical-school classmates. He says he works harder than they do and in tougher conditions. He and his four black classmates set up a primary-care clinic when they were at Davis and worked there as volunteers, but they couldn't get any of the white students to join them. While he was still a resident at the University of Southern California, he and one of his black classmates from Davis each put up $500 and opened a small practice, so that they could "hit the ground running" when they graduated. He ticks off what the black doctors admitted under Davis's special minorities-only program (which was eliminated after the Supreme Court's Bakke decision, resulting in subsequent classes having only one or two black members) are doing now: almost all are in primary care in underserved areas, including his ex-wife, Toni Johnson Chavis, a pediatrician in Compton. If Chavis hadn't gotten into medical school, his patients wouldn't be treated by some better-qualified white obstetrician; they'd have no doctor at all and their babies would be delivered the way Chavis was -- by whoever happened to be on duty at the emergency room of the county hospital.

Rather than believing that if it weren't for affirmative action he would be functioning in a color-blind environment, Chavis sees the old-fashioned kind of racial discrimination everywhere. The idea that, as an obstetrician-gynecologist, he could build a practice on the west side of Los Angeles based on middle-class white women is a joke. The Bank of America wouldn't lend him the money to build his house because it is in a rundown black neighborhood. He has staff privileges at St. Francis Hospital in Lynwood, where all the obstetricians are black or Latino, but got into a fiery dispute with Long Beach Memorial Medical Center, where for a while he was the only black OB admitting patients. The hospital put him under professional review, saying he had performed a substandard delivery. Chavis felt the real issue was that the hospital didn't want him admitting Medicaid patients. He sued the hospital for discrimination and won -- but the judge overturned the verdict; she mentioned that the jury's award of $1.1 million in damages seemed unwarranted, since he bills Medicaid $800,000 a year. Rather than feeling sheepish about making so much money, Chavis points out that Medical reimburses at the rate of $14 per office visit and $400 per vaginal delivery. His white classmates, with their higher-paying privately insured patients, do fewer deliveries and make more. He has been audited by the state and by the Internal Revenue Service, which he does not attribute to bad luck. "We do it with enthusiasm and with joy, and we fight the system," he says.

So Patrick Chavis fiercely defends affirmative action and holds himself up as an example of the good that it does. "There's no way in hell -- if it wasn't for some kind of affirmative action, there wouldn't be any black doctors," he says. "Maybe one or two. Things haven't changed that much."

LOAD-DATE: June 12, 1995