DURING HIS PRESIDENCY Bill Clinton vowed to mend affirmative action. The latest evidence he failed to do so comes in the form of a lawsuit filed earlier this month against the federal government. Now it's up to the Bush administration to undertake the needed reforms.
Dennis Worth has worked for 24 years in the St. Louis office of Housing and Urban Development. Routinely rated an excellent employee, he applied for a promotion several years ago--and was denied. Worth continued so to apply and be denied, batting 0 for 12 even though he always made the "best qualified" short list of finalists.
Being white and male, Worth noticed that almost always the job he sought went to a female or member of minority groups designated for preference by the government. He concluded that HUD had discriminated against him on the basis of race and sex, and that HUD had done so by executing an affirmative action plan favoring women and certain minority groups--a plan he believes unconstitutional.
Worth could have filed seeking to prove discrimination against him and asking for appropriate relief, such as the awarding of a job denied. Instead he has sued in behalf of all federal employees disfavored by affirmative action plans such as HUD's. The suit asks the courts to end those plans and require the government to live up to the Constitution's command of equal treatment under the law. The case promises to be far more significant than if it were only about one agency's treatment of one employee.
The case illumines how the government has long practiced affirmative action. The Equal Employment Opportunity Commission, which, with HUD, is being sued, monitors all federal employment decisions to ensure that they are "free from any discrimination based on race, color, religion, sex, or national origin." Toward that end it requires all departments and agencies to implement a pre-approved "affirmative employment plan." The plans encourage decisions that inevitably are not "free from discrimination."
Under a 1987 EEOC directive, each agency must identify in its plan instances of "manifest imbalance" of women and minorities in any sector of its workforce. The agency also must establish numerical "goals" to eliminate the "underrepresentation."
The EEOC evidently has a generous definition of "manifest imbalance," since the HUD plan, duly approved by the EEOC, uses goals to correct even the smallest "underrepresentation" of minorities and women. Consider that last year HUD officials found that Asian males represented 3.4 percent of the agency's workforce in the professional job category, with the figure for the comparative civilian labor force being 3.5 percent. The officials declared that mere tenth of a percent a "manifest imbalance" and established preferential hiring and promotion goals.
The 1987 EEOC directive reflected previous Supreme Court decisions upholding race- and sex-based affirmative action. Those decisions allowed for affirmative action to correct gross disparities but not the trivial ones HUD, with the EEOC's blessing, now pursues.
Nor is HUD exceptional in this regard. Terry Pell of the Center for Individual Rights, which is representing the plaintiffs, says that CIR reviewed the numbers for every agency and found everywhere efforts to correct the smallest imbalance of women and (government-designated) minorities. "We could have filed against any agency," he says. "The numbers are that bad [like HUD's] everywhere."
The Supreme Court decisions informing the 1987 directive also prohibit preferences to maintain parity. Preferences are supposed to be temporary. But HUD, with EEOC's acquiescence, still uses them once the correction has been made and even when favored groups are "overrepresented."
The government has departed from what the Supreme Court said through 1987. But it's also ignored what the Court has said since then. And that's the real issue in the Worth case--the fact that the government has failed to comply with pertinent constitutional decisions, the last in 1995.
Under those decisions, the government can't systematically favor one racial group over another, as "affirmative employment plans" do. Moreover, the government may use preferences only to remedy its own discrimination. Not incidentally, HUD was founded in 1965 and has no record of discrimination against minorities or women.
Worth v. Martinez puts an administration reluctant to tackle preferences on the spot. Either it will defend the legally and morally corrupt regime it inherited or it will use the lawsuit as the occasion to reform affirmative action. It's long past time that the government quit discriminating in its own employment practices.
Terry Eastland is publisher of The Weekly Standard.