Reverse-Bias Suit Brimming With Political Implications : Courts: Government's filing against Illinois State University touches off debate over affirmative action.


There was a time when Steven Putt would have taken janitor work. Desperate to pay off more than $13,000 in student loans for classes at Illinois State University, he was willing to scrub dormitory halls and bathrooms, trudging long hours behind a cart laden with buckets of dirty water, bleach, brooms and toilet paper for $6 an hour.

These days, Putt makes $17 an hour on an auto assembly line at a Mitsubishi factory near this central Illinois college town--a pay scale so rewarding that he put off completing his political science studies even though he is just a few credits short of graduation.

But Putt is still obsessed with the job that got away. His anger over being turned down by a custodial training program at the university in 1989 has touched off a legal battle with immediate political implications for the Clinton Administration as it confronts sharpening national discord over affirmative action.

The Justice Department's decision earlier this month to file a discrimination lawsuit on Putt's behalf against Illinois State came as an abrupt change of course for an agency that had aggressively prosecuted racial bias against minorities. And it has cast Putt as the government's angry man--a white victim of affirmative action who finds himself uncomfortably sided with an Administration groping for its own middle course.

"All I wanted was a level playing field," Putt said. "I never imagined this Administration would back up someone like me on an issue like this."

Filed soon after President Clinton announced plans for a major review of federal affirmative action programs and before Justice officials were scheduled to testify next week before a House committee on affirmative action, the lawsuit has "at the very least, good timing," said one veteran civil rights attorney.

"I am certain we will hear this case cited over and over again as the affirmative action issue is brought to the forefront of political debate," said Charles J. Cooper, a former Justice Department lawyer in the Ronald Reagan Administration.

Surprised by a lawsuit they thought had been averted after four years of negotiations, Illinois State officials raise the question of political motive. ISU President Thomas P. Wallace has defended the janitorial training program as "a success story" and blamed the lawsuit on Clinton's reelection efforts.

Justice Department officials have strongly denied any political agenda in their decision to represent Putt. In announcing the lawsuit earlier this month, Deval Patrick, the assistant attorney general in charge of civil rights, said that the "Administration is committed to protecting the civil rights of all Americans, and this case is no exception."

Patrick has been under fire from congressional conservatives for switching sides in a major civil rights court case that originally placed the George Bush Administration on the side of a white teacher dismissed by a school board in Piscataway, N.J. Last fall, Patrick filed a motion signaling the government's intent to join with the school board--a move that may be questioned during a planned House hearing next week if Patrick is called to testify.

Aware of the Clinton Administration's once-firm support for affirmative action, Putt said he was stunned when a lawyer from the Justice Department's civil rights office called him "out of the blue" late last month with news that the government planned to sue Illinois State for reverse discrimination.

Putt said his contact with the department had been minimal in recent years. Since 1991, when the Equal Employment Opportunity Commission concluded that Illinois State was guilty of bias against him, Putt said, he had received only occasional "form letters" from the Justice Department. Until a call late last month from Elizabeth Hack, a Justice civil rights lawyer, Putt said that he "had no inkling they were going to take my case."

The ruddy-faced son of a Snap-On tools worker from Bone Gap, Ill., the 30-year-old Putt acknowledges his conservative sympathies, but is hardly a political firebrand.

"I had nothing against blacks getting the jobs," he said. "But if we're going to be a colorblind society, it seemed to me I should have at least the same opportunities they do."

It was a job counselor's curt response that finally prodded him into action in the spring of 1989.

Putt said he had inquired about the university's Building Service Worker-Learner Program, an affirmative action training strategy started by university officials in 1982 to move blacks and women into unskilled janitor jobs traditionally filled by white men. Most applicants for janitor jobs are hired through state civil service procedures. But those in the program were able to transfer into full-time jobs after six months of training--without taking any civil service tests.

When he asked if he could apply to the learner program, Putt said, he was told it was designed only for minorities.

"She told me the learner program was restricted by race," Putt recalled. "It was blacks and women only. I knew that violated the law. It was blatantly racial and it was wrong."

He filed a complaint with the EEOC, which ruled in 1991 that the university was guilty of bias and forwarded the case to the Justice Department. For four years, lawyers for the government and the university tried to negotiate a settlement. But talks broke down early this year.

University officials were not available to discuss the lawsuit, but Wallace and other ISU administrators have explained that the program was essential to diversify a mostly white custodial staff. Carol Fines, a lawyer for the Illinois Board of Regents who is defending the university, said the program has been revised and it no longer discriminates.

"Anyone and everyone can now apply and be considered," Fines said.

Justice officials say that the university balked at paying "appropriate" damages to Putt. Government lawyers also remain skeptical of the university's willingness to hire whites into the program.

Veteran civil rights lawyers familiar with Justice Department procedures in civil rights cases say the lengthy time frame for negotiations in Putt's case is typical, lending credence to the agency's contention that Putt's case was not given special consideration for political reasons.

"Politics was irrelevant to the process," said Justice spokesman Myron Marlin.

But if the process was the same, the internal motivations for the lawsuit are less discernible--and some former federal civil rights prosecutors insist that such a politically sensitive case had to be vetted by top Justice and White House officials.

The "political benefits" of such a case "had to be immediately perceived and discussed at the highest levels of the Clinton Administration," Cooper said. "It's nonsense to think otherwise."

Political considerations loom even larger, other observers say, because the case is unlikely to break new constitutional ground. The U.S. Supreme Court has already signaled its readiness to overturn affirmative action programs when they "discriminate on the basis of race," said John Donohue, a Northwestern University law professor and analyst of discrimination law.

Jeffrey M. Shaman, a DePaul University professor who specializes in employment law, suggested that the suit might have been filed to test the Supreme Court's support of training programs aimed at correcting "underrepresentation of minorities."

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