COLUMN ONE : Blitz Stalls, but a Long War Looms : Affirmative action has proven far tougher than its foes expected, surviving a wave of efforts to wipe it out. Now both sides are bracing for the next battle--the ’96 election.

In a year when the flames of racial antagonism have flared with sometimes frightening intensity, affirmative action has proven to be surprisingly soggy tinder.

Last spring, many supporters of affirmative action worried that the conservative surge that carried the GOP to power in Congress in 1994 might inexorably sweep away programs built to expand opportunities for women and minorities.

But the blitzkrieg never occurred. Although University of California regents voted to end affirmative action programs, no other state followed their lead. In Congress, neither chamber moved forward on GOP-sponsored legislation to roll back affirmative action. Thirteen states considered proposals this year to end affirmative action; none approved them.

The anti-affirmative action drive “looked like an unstoppable steamroller only a year ago,” Michael Greve, executive director of the conservative Center for Individual Rights, wrote recently. “Now it’s barely puffing.”

The steamroller stalled primarily because liberals mobilized unreservedly behind affirmative action and conservatives hesitated about pushing the fight. Yet this may be only a pause. Affirmative action’s supporters no longer fear a lightning strike. But they now face the reality of protracted warfare in Congress, the courts and the political arena.

Supporters and opponents alike now expect that an initiative to ban all government programs of racial preference in California is likely to win a place on the state ballot next fall--just in time to inject affirmative action directly into the 1996 presidential campaign.

To further pressure the presidential candidates to debate the issue, House Republicans hope to bring legislation to the floor next spring that would ban all racial preferences in federal programs. And many states that rejected bans on affirmative action this year are likely to explore reforms in such programs next year, says Brenda Trolin of the National Conference of State Legislatures.

At the same time, affirmative action will face new pressure in the courts, as federal judges nationwide struggle to interpret this year’s Supreme Court decision that narrowed the permissible use of racial preferences in federal programs.

More important to the long-term fate of affirmative action than any of these immediate changes is an underlying shift toward the right in the intellectual and political climate that has eroded the taboo against open debate on affirmative action. “For the first time, in 1994, a debate that had been suppressed for 20 years exploded,” said Vanderbilt University historian Hugh Davis Graham, author of “The Civil Rights Era.”

“That was a fundamental shift and probably irreversible.”

Since the 1960s, liberals have generally controlled the terms of debate by portraying affirmative action as an extension of the battle for equal rights.

“There really is only one tool by which government, business and schools, mostly voluntarily, have really taken on the business of trying to integrate their work force or college campus or neighborhood,” said Deval Patrick, assistant attorney general for civil rights, “and that’s affirmative action.”

Some leading conservatives--most prominently House Speaker Newt Gingrich (R-Ga.)--still worry that the GOP will be seen as racially insensitive if it pushes too hard against affirmative action. But the general upsurge in intellectual self-confidence on the right has diluted that anxiety, particularly among younger conservatives.

“I believe that the system of preferences that is in place now is inherently racially divisive,” said Rep. Charles T. Canady (R-Fla.), the lead sponsor of Republican legislation to ban most federal affirmative action efforts. “It is a system that encourages thinking along racial and gender lines. It is a system which reinforces prejudice in this country.”

Those sharply worded sentiments crash directly against the widespread perception among African Americans, as measured in opinion polls, that discrimination remains pervasive and invidious--”a massive and worsening problem,” as Rep. John Conyers Jr. (D-Mich.) recently put it.

Thus the country views affirmative action from diametrically opposed perspectives. One side sees America as a society still infected by racism and sexism. The other sees in affirmative action the culmination of a trend toward group rights that exacerbates social division. That clash guarantees the conflict will continue.

Well into the next century, affirmative action is more likely to remain an unpredictable flash point in American politics--”an unstable compound,” as Will Marshall, president of the centrist Progressive Policy Institute, calls it.

Stable Public Opinion

For all the talk of a backlash against affirmative action, public opinion has remained stable for years. The rising swirl of controversy owes more to the increased willingness of critics to press their challenges than to a shift in public attitudes.

Generally, most Americans--of all races--support programs meant to reach out and broaden the pool of applicants for jobs, college admissions or government contracts. Where the consensus breaks down is when the issue is framed in terms of minorities or women receiving any form of preference.

Earlier this year, a Los Angeles Times Poll asked: “Because of past discrimination, should qualified minorities receive preference over equally qualified whites in such matters as getting into college or getting jobs?” By 78% to 16%, whites said no; even blacks and Latinos divided roughly evenly.

Those numbers have not changed much for years. Nor do they differ much when the question is posed regarding preferences for women. (Just 23% of white women polled said women should receive preference to compensate for prior discrimination.)

The bright line in public opinion, then, is between outreach, which Americans support, and preference, which most oppose. But defining preference in practice has proven problematic.

Almost everyone would consider quotas that guarantee minorities a certain percentage of jobs or other benefits a form of preference, and almost everyone in public life claims to oppose them. But such inflexible quotas are rare, sanctioned by courts only as a remedy for specific examples of systemic discrimination.

Similarly, other government programs limit certain scholarships, contracts or grants solely to minority applicants. But these programs also are relatively small.

More common--and more difficult--are cases in which race and gender do not guarantee, but rather influence, the distribution of benefits.

In many affirmative action programs, race or gender is treated as a “plus factor”--a thumb on the scale for minority or female applicants. Some federal programs, for instance, allow contracts to be let to minority-owned firms whose bids are up to 10% higher than the low bidder. Universities and graduate schools now routinely use race and gender as a plus factor along with grades and test scores when evaluating applications.

Affirmative action supporters say that approach fits into a long tradition in which society’s benefits are passed out based on a blend of objective measurements of merit with a host of less tangible considerations. Universities give preferences to talented athletes or the sons and daughters of alumni; union apprenticeships open more easily to members’ children. Directly considering race, by this perspective, is nothing more than evening the scales.

“Most people will readily acknowledge there just ain’t many circumstances . . . in which objective measures constitute the entire basis on which someone is selected,” said Christopher Edley Jr., a Harvard law professor who co-directed a Clinton administration review of federal affirmative action programs. “In the vast majority of cases, a host of subjective and random factors play an important role.

“In that context of informal and subjective decision making, using race as a flexible consideration is not an affront to the merit principle, and it is the only practical means of opening up genuine opportunity,” Edley said.

But when does the “flexible consideration” of race genuinely threaten the merit principle? That question provides endless fuel for controversy.

Consider the case of “goals and timetables” to encourage greater participation by minorities.

Under an executive order initially promulgated by President Lyndon B. Johnson in 1965 and strengthened during the Nixon administration, federal contractors--a group that altogether employs about one-fifth of the nation’s labor force--are barred from discrimination and are required to undertake “affirmative action” to ensure that job applicants and employees are treated “without regard to their race, color, religion, sex or national origin.”

Contractors also must establish goals and timetables for the hiring of women and minorities.

Do such goals and timetables impel contractors to grant preferences to women and minorities in hiring? Officials at the Office of Federal Contract Compliance Programs, the Labor Department agency that enforces the executive order, vehemently say no.

“The executive order really focuses on the need to increase and improve the pool of qualified women and minorities--and later on, disabled [workers] and Vietnam veterans--from which a contractor may select a qualified individual,” said Shirley J. Wilcher, the deputy assistant secretary of labor for contract compliance. She even insists that the agency will prosecute contractors “who go over the edge and engage in hiring by numbers” in a manner that unfairly penalizes white applicants.

At least some contractors agree. The Equal Employment Advisory Council, a trade association of federal contractors, concluded this year that the Labor Department’s enforcement of the executive order “clearly does not impose preferences or quota-like requirements.”

But critics insist that the program’s very structure imposes pressure to grant racial and gender preferences.

The agency selects firms for often-exhaustive audits when a computer program shows that their employment of minorities is significantly lower than similar employers in their area. Critics insist that the fear of being audited--which can involve substantial legal and consulting fees for contractors--leads at least some firms to hire by the numbers.

“It is my experience that the goals and timetables are not preferences--they are quotas,” said Peter Kirsanow, a labor lawyer in Cleveland who works with federal contractors.

Ban’s Murky Prospects

Amid these strands of tangled nuance, many conservatives now support a response of drastic simplicity. Canady and Senate Majority Leader Bob Dole (R-Kan.) have sponsored legislation that would sweep away the executive order’s goals and timetables as part of an across-the-board ban on the use of racial or gender preferences in all federal programs, from contracting to employment.

The bill would not bar affirmative action programs in private companies or universities, but it would prohibit federal agencies from using lawsuits to require companies or schools to adopt goals or timetables. The proposal would mark a sudden and decisive reversal of three decades of federal civil rights policy.

For now, though, that legislation’s prospects are murky at best. In the House, with many moderate Republicans resisting efforts to limit affirmative action, neither supporters nor opponents of Canady’s bill can say for certain whether they hold a majority. In the Senate, the bill has virtually no chance. An anti-affirmative action amendment offered by Sen. Phil Gramm (R-Texas) last summer attracted just 36 votes. And the prospects of attracting 50 votes--much less the 60 needed to break a filibuster--to the proposed legislation “are, frankly, dim,” said a Dole aide. In recent weeks, Dole has rarely mentioned the proposal.

More serious legislative efforts to roll back affirmative action probably would require GOP gains in the 1996 presidential and congressional elections.

The course of the national debate could be shaped even more powerfully by the fate of the California ballot initiative to ban any state policy that confers racial or gender preferences--the so-called California Civil Rights Initiative.

After making little progress for many months, organizers describe themselves as cautiously optimistic that they will collect the 694,000 signatures they need by Feb. 21 to qualify the initiative for the November ballot. Early polls show that a substantial majority of Californians say they would back the measure.

But with many business leaders leery of the crusade, sponsors have had difficulty raising money for the controversial measure. If that problem persists, a well-funded campaign against the proposal might be able to reverse public opinion by next fall, says Bob Mulholland, political director for the state Democratic Party.

If the California initiative fails to make the ballot, or is rejected by the voters, “it would let the wind out of the sails of the movement” to retrench affirmative action, concedes Linda Chavez, president of the Center for Equal Opportunity, a conservative think tank.

Whatever happens in California, however, several forces are likely to sustain pressure on affirmative action programs.

One is economics. Most observers agree that the slowdown in the growth of middle-class living standards over the last two decades has increased the resistance of whites to programs that appear to favor minorities. As long as incomes remain tight, affirmative action will remain a tempting target for politicians looking to attract economically anxious voters.

Demography is another force complicating the future for affirmative action programs. Increasingly, disputes over such programs pit not whites against minorities, but one group of minorities against another--as when blacks and Cuban Americans battled over the distribution of congressional seats in Florida, or when some Asian Americans complained that affirmative action policies at UC reduced their chances for admission. These struggles are certain to intensify as large-scale immigration fuels demographic change; by 2010, the Census Bureau estimates that Latinos and Asian Americans will exceed the population of blacks by 50%.

At the same time, the extension of affirmative action benefits to new immigrants who, by definition, did not live through discrimination in the United States could erode public support for the programs, predicts Lawrence Fuchs, vice chairman of the U.S. Commission on Immigration and a professor of American civilization at Brandeis University.

The third major factor is the courts--particularly the five-member conservative coalition on the U.S. Supreme Court. Last year, the court ruled that government programs that dispense benefits by race must serve a “compelling governmental interest” and be “narrowly tailored.”

Over the next several years, says Edley, “there will be a fair amount of chaos” as lower courts attempt to determine which affirmative action programs are acceptable.

Federal agencies are already grappling with that question. Last summer, President Clinton ordered a review of federal affirmative action programs to measure whether they met the Supreme Court’s new specifications.

The review led to the elimination of one Defense Department program that guaranteed contracts to minority businesses under certain circumstances. And the Justice Department early next year will announce across-the-board revisions that will establish new government-wide limits on the share of contracts that can be let with minority preferences, says John R. Schmidt, the associate attorney general.

But the administration’s review of federal affirmative action programs is unlikely to produce a major shift in direction. It is uncertain whether the new limits will even reduce the number of contracts to which preferences are now attached, Schmidt said. And the executive order requiring federal contractors to set goals and timetables did not need to be reviewed, the Justice Department decided. The order “does not require anyone to take race as a basis for decision making,” he says.

Greater changes may come from future court cases that flesh out the Supreme Court’s ruling, but many analysts doubt even that process will provide an unambiguous answer to the disputes over when race and gender may be used.

What has happened is “the court wants to make a U-turn, but they are having trouble doing it,” Chavez said.

Expansive Rationale

Indeed, the overall debate on affirmative action appears to be moving in several directions at once. On the one hand, political and legal challenges to programs that bestow racial preferences are intensifying. On the other, affirmative action programs demonstrated greater strength than many expected in resisting those political challenges this year.

And even as existing programs are under attack, supporters are constructing a more expansive rationale for their efforts. Originally, advocates sold affirmative action as a method of compensating for slavery and decades of state-sponsored segregation against African Americans, or persistent discrimination against blacks or other minorities.

But increasingly supporters argue that affirmative action is necessary to ensure “inclusion” of minorities and women in institutions even when there is no evidence of historic or contemporary discrimination. UCLA Chancellor Charles E. Young, for instance, says that whatever the reason for the disparity in their academic credentials, some preferences must be granted to African American and Latino applicants who would otherwise be represented in much smaller numbers at UC.

“UCLA may be a particularly hard place to talk about historic discrimination,” Young said. “Look at the graduates from the ‘20s or ‘30s: Ralph Bunche and Jackie Robinson and so on. That’s nice. I’m glad we did that. But we are an institution that is trying to bring about changes in our society that are beneficial. . . . Otherwise, we are going to have a permanently disadvantaged group.”

Young’s arguments parallel those of corporate executives who say that “diversity” in their work force helps them reach consumers of all races--a perspective that has allowed affirmative action programs to take root even in many companies not required to undertake them.

Particularly among larger companies, affirmative action has become part of corporate management, with its own departments, procedures and constituencies.

This heightened emphasis on diversity as the rationale for affirmative action subtly but profoundly changes the nature of the debate. Proponents of affirmative action have almost always talked about it as a transitional program: In his speech last summer defending such efforts, Clinton declared that “affirmative action should not go on forever.” But the pursuit of diversity suggests a more open-ended commitment to integrating race and gender into a broad array of social decisions.

“The whole effort is to lift affirmative action off of a backward-looking rationale [based on responding to discrimination] and toward a forward-looking argument based on diversity,” said Terry Eastland, a former Reagan administration Justice Department official and author of an upcoming book on affirmative action.

That shift offers the paradoxical prospect of voluntary affirmative action efforts enlarging their impact across society, even as legally mandated efforts face increasing pressure in the courts and Congress.

At any given point in the years ahead, it may thus be difficult for the combatants on either side of this emotional dispute to say with precision whether affirmative action is gaining or losing ground or whether the entire process is advancing or impeding the original goal of unifying and integrating the nation.