A Question With Many Answers

The strength of democracy is also its weakness. Yes, Americans get to vote on important matters, or at least some of the important matters, and for that they stand ready to fight. But also, they find themselves asked to vote on questions that make them uncomfortable, where they must take sides against their own mixed feelings, knowing their votes will impose a consensus when none, in fact, exists. And against that, there is no way or will to fight at all.

As Oscar Wilde, ever the cynic, once put it: “Democracy means simply the bludgeoning of the people by the people for the people.”

In November, Californians will choose, as it were, between fairness of opportunity and equality of opportunity in the workings of state and local government. Or is it the other way around, equality versus fairness?

This is not idle wordplay with the citizen ballot initiative Proposition 209, the latest hot spillover from the caldron of race and gender politics in California.

On Nov. 5, Proposition 209 will demand a decision on a subject where basic laws of the land are contradictory and their history veiled, where judicial direction is indecisive and policy implementation is uneven, where an entire generation has lived with something and still cannot agree what it is.

Proposition 209 is about affirmative action. It’s about affirmative action preferences for blacks and Latinos, Native Americans and women, but only those working for the government--or seeking government contracts or competing for admission to public colleges. Affirmative action for that slice of the population would be outlawed by amendment to the state Constitution with passage of the initiative.

But Proposition 209 also is about the nature of a fair society, America’s grand stereotype of itself and a 35-year quest to right hundreds of years of social wrongs. It’s about getting a break in a society where demand exceeds supply when it comes to opportunity.

So in nine weeks, Californians will have to choose their ground. Yes or no.

Both sides in this campaign voice allegiance to the founding belief that equality is an essential aim of society.

But the definition of fairness and proper tactics for achieving it have bedeviled the country from the start, and ever more now.

Words are power. And, as French writer Antoine De Saint Exupery remarked, “Words are the source of misunderstandings.”

The term affirmative action goes back to at least the 1940s in the struggle over civil rights. According to George E. Curry, editor of Emerge magazine and author of a new book, “The Affirmative Action Debate,” the term first gained legal standing in 1961 in an executive order signed by President John F. Kennedy establishing the Committee on Equal Employment Opportunity.

In 1964, President Lyndon B. Johnson appealed for “an understanding heart by all Americans” to right the wrongs of racial inequity.

That year, the government enacted the landmark Civil Rights Act. And Johnson set out to prepare a divided nation for “the next and more profound stage in the battle for civil rights.”

“Freedom is not enough,” Johnson said. “You do not wipe away the scars of centuries by saying: Now you are free to go where you want, do as you desire, and choose the leaders you please.

“You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.”

Johnson specifically referred to black Americans, whom he called “another nation: deprived of freedom, crippled by hatred, the doors of opportunity closed to hope.”

The next year he signed Executive Order 11246, requiring federal contractors to take affirmative action to provide equal opportunities without regard to race, religion or national origin. In 1967, the category of gender was added.

In 1969, under President Richard Nixon, the law was expanded to require “goals and timetables.”

For many, the objective seemed apparent. But America’s affirmative action laws and regulations actually have been shrouded all along in ground fog generated in the power chambers of government.

At the very same time the nation embarked on affirmative action, Congress approved the 1964 Civil Rights Act, still the law of the land, and it specifically outlaws discrimination in employment based on “race, color, religion, sex or national origin.”

Further, the late Sen. Hubert H. Humphrey, a sponsor of the law, repeatedly said the critics were wrong to worry. “It is claimed that the bill would require racial quotas for all hiring, when in fact it provides that race shall not be a basis for making personnel decisions,” Humphrey said.

But, of course, something of that sort was in the minds of those who wrote the regulations. Portions of government contracts were set aside for disadvantaged groups. Colleges and universities began to award extra points toward admission based on race. Government agencies that failed to diversify their work forces were ordered by courts to do so.

All the while, everyone denied that any of this was a “quota,” that overloaded buzzword.

The result could be described by analogy to a card game, which, like life, requires the essential components of skill, luck and opportunity. Those who had been excluded from the table because of their race or gender now had legal rights to participate. And the dealer was expected to deal them an extra card in their hands once in a while as affirmative action to make up for keeping them away. After all, they were new to the game, and it was only fair to help.

The extra card here and there was supposed to even out the chances of winning, and, viewed from a detached distance, had undeniable logic. But the new rules, by avoiding quotas, created a vagueness that could be aggravating. Some old-timers at the table felt they were losing too much, while some newcomers believed they were gaining their share too slowly.

Through the years, those who felt aggrieved by affirmative action fought back on grounds of “reverse discrimination” and were successful in limiting, but surely not eliminating, race and gender as deciding factors in government hiring, contracts and educational admissions.

In 1972 and again in 1973, a white man named Allan Bakke was denied admission to the University of California medical school at Davis. He sued, complaining that 16 of 100 openings in each class were unfairly set aside for ethnic minorities. The U.S. Supreme Court split 5-4 in ordering Bakke admitted. But at the same time the court held that race could be taken into account for admissions. The court ruling offered six different opinions filling 156 pages.

Confused? Do not blame yourself.

In the 1990s, the challenges to affirmative action gained strength from the confluence of two powerful social currents--the new economic anxiety of “downsizing” and the growing influence of conservatives and their ideology of individualism.

In his book “Ending Affirmative Action,” writer Terry Eastland concludes that the sum of all such programs “has guaranteed the salience of race and ethnicity in the life of the nation, thus making it harder to overcome the very tendency the civil rights movement once condemned: that of regarding and judging people in terms of their racial and ethnic groups.”

Courts, meanwhile, whittled away further at affirmative action in employment, limiting it more and more to remedial cases where past instances of discrimination could be proved.

Last year, Rep. Charles T. Canady (R-Fla.) proposed outlawing all race and gender preferences in federal government. The policies of affirmative action, he said, “expressly reject the principle of equal opportunity.”

Canady said President Johnson was just wrong. “The true meaning of American equality,” Canady argued, does not require that Americans be equal in fact, but only in opportunity. No more help from the card dealer.

“Preferential treatment and genuine equal opportunity are fundamentally incompatible,” he said.

Many Americans understand the contradictions Canady raises. And pollsters could surely raise a majority of Americans to agree with him about preferences. Just as they could establish a counter-majority in agreement with Lyndon Johnson and affirmative action.

This is the nature of America’s uncertainty.

Unlike, say, abortion, where American opinion is firm and can be measured one way and the other, opportunity at work and in education raises a complicated tangle of emotions, from the most personal of realities--a paycheck--to the social abstractions of rightness and justice.

The result, as pollsters frequently say, is that one’s response to affirmative action depends on the wording of the question, one’s mood at the moment and, surely, whatever happened at work or in school that week. And even this sometimes does not explain all the contradictory sentiments.

A poll of Californians taken in July by the Los Angeles Times found that 48% of those who said they supported affirmative action also said they supported Proposition 209 to eliminate it in government.

In March 1995, a more extensive statewide poll by The Times found that only 9% of Californians felt they ever received a break as a result of affirmative action. But 22% were sure they had been victims of reverse discrimination because someone else got ahead as a result of affirmative action. This included a surprising 29% of African Americans who felt they too had been victims of reverse discrimination.

Polls like this can be made to portray America as selfish. Or conversely as kindhearted. Or maybe even delusional. Who among us is not a little of all three?

In the questioning, 66% of respondents said they would favor an initiative to prohibit government from granting preferences based on race or gender. Word the same question differently and 70% of these same respondents said they favored “special programs designed to bring more women and minorities into workplaces and educational institutions.”

A total of 74% of the respondents said California was “not close” to eliminating discrimination, and 57% voiced support for civil rights laws, saying they are right as now written or should be strengthened. On the other hand, 43% of the respondents, and 52% of whites, said that even though discrimination persisted in California, “affirmative action had gone on too long.”

In a new and meditative book on America’s social conflicts, “Democracy and disagreement,” Princeton professor Amy Gutmann and Harvard’s Dennis Thompson suggest that citizens owe each other a more deliberative approach to governance, where moral disagreements like affirmative action are not winner-take-all matters.

It is possible, the authors suggest, to be moral in one’s thinking without also being righteous, although this “imposes on citizens a greater obligation to account for their choice of policy than they usually assume.”

In an analysis of affirmative action, the two professors conclude that discrimination, including past discrimination, is a “moral wrong” and that this fact should be the starting point for debate.

“Justifying a policy of preferential hiring or a policy of nondiscrimination requires giving reasons to those citizens most disadvantaged by the policy--reasons they can respect even if they deliberatively disagree with them,” the scholars suggest.

“In the process . . . all citizens can come to understand better the moral meaning and policy implications of fair opportunity.”

Can the Proposition 209 campaign achieve such a state of grace?

The recent history of California ballot propositions suggests this is unlikely. These runaway campaigns have become about winning, not understanding. And sometimes winning at the expense of understanding.

“The only sin which we never forgive in each other,” said Ralph Waldo Emerson, “is difference of opinion.”