Does affirmative action have a future?

• Author: Bresler, Robert J.
• Position: Column

THE DEPARTURE from the Supreme Court over the last few years of William Brennan, Thurgood Marshall, and Harry Blackmun, three articulate liberal justices, is a reminder that affirmative action rests on shifting judicial grounds. It is unlikely that their successors--David Souter, Clarence Thomas, and Stephen Breyer--will assume the same passionate stance toward affirmative action. Within the next couple of years, the Court is apt to hear several reverse discrimination suits concerning racial and gender preferences. Presently, there is a challenge in Federal court to a University of Texas Law School admissions policy that allegedly has lower standards for minority applicants.

Controversial social change can not rest upon the courts, and even the most sympathetic judicial decisions are no substitute for public support. Brown v. the Board of Education, historic as it was, did not produce real results in the South until Congress passed the Civil Rights Act of 1964. That law was the result of the successful efforts of Rev. Martin Luther King, Jr., and others to create a broad consensus for social change. The lesson is clear for supporters of affirmative action programs. They must stand on a firm political base to be effective.

Currently, political support is fragile. The results of recent state and local referenda on gay rights are an indication of public unease with the status of the rights revolution. A movement is under way in California to place on the ballot in 1996 an initiative prohibiting the use of "race, sex, color, ethnicity or national origin as a criterion for either discriminating against, or granting preferential treatment to, an individual or group in the operation of the State's system of public employment, public education or public contracting." The prospects for this initiative are quite good since polls consistently have shown an overwhelming majority of voters oppose preferential treatment for women and minorities.

The California challenge may be one of many throughout the states in the coming years. Can affirmative action in its present form survive into the next century? It could if the concept fundamentally is reconstructed to draw upon two central ideals of the civil rights movement.

First is the simple idea that justice for people should be based upon their status as individuals, not members of groups. This will require taking affirmative action beyond race, sex, and ethnicity; looking at those who have suffered...