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TRB From Washington

For those of us who think the affirmative action wars should be settled at the ballot box rather than in the courts, this is supposed to be the moment of truth. In little more than a month, the people of California will vote on a constitutional initiative that would bar the state from discriminating, or granting preferences, based on race or sex, in public employment, education or contracting. And, on September 18, the House Small Business Committee held hearings on a bill that would repeal the mother of all federal affirmative action programs, the 8(a) program, which last year set aside about $5.8 billion in federal contracts for small businesses owned by certain minorities. Unfortunately, opponents of both proposals have managed to avoid a debate on the merits of affirmative action for minorities by playing on the fears of a politically powerful majority: women.

At the House hearing last week, I was flattered to be invited to testify about the constitutionality of the 8(a) program, in light of the Supreme Court's Adarand decision. Alas, the proceedings didn't quite live up to the Madisonian ideal. The Democrats yelled at the Republicans. The members yelled at the witnesses. Representative Maxine Waters of California yelled at everyone, including the spectators. And the debate itself was literally one-sided. In the morning, seven Republicans showed up to profess their ambivalence about the bill, while fourteen Democrats declared themselves unalterably opposed. After the noon recess, the Republicans fled the hearing room, leaving the right side of the bench entirely empty. The bill's grandmotherly sponsor, Chairwoman Jan Meyers of Kansas, sputtered at her colleagues' betrayal, but in the movement to end, not mend, affirmative action, she, like Custer, was left to stand alone.

Rather than end small business set-asides, Democrats and Republicans fell all over themselves to extend them--to women. During the 1980s, the Small Business Administration rejected petitions to add women, along with Hasidic Jews, disabled veterans and Iranians, to the list of groups eligible for set-asides, while bowing to the more effective lobbying of Asian Indians, Tongans, Sri Lankans and Indonesians. Pressed by both Meyers and the Democrats to correct this shameful example of patriarchal hegemony, Philip Lader, the head of the SBA, announced that the Clinton Justice Department would soon propose changes to "facilitate women's entry into the 8(a) program." In fact, the Clinton changes would make it easier for all individuals left off the list of presumptively eligible groups, not only women, to prove that they are victims of "social disadvantage." But Lader, like his questioners, was eager to avoid a debate about class by focusing on gender.

Emboldened by the shifting political tides, Democratic defenders of the 8(a) program refused to engage the logic of recent judicial decisions. Since July, three federal courts have held that a set-aside program for sub-contractors is not an appropriately narrow remedy, even if the state has a history of discrimination in awarding prime contracts. Confronted with these decisions, Representative James Clyburn noted that "the Confederate battle flag" still flies over the South Carolina State House, and "that makes a statement for me." But courts have refused to accept general evidence of "societal discrimination" to justify contracting set-asides.

While there is little chance Meyers's bill will pass, the California Civil Rights Initiative is another matter. According to a Los Angeles Times poll, 60 percent of likely voters favor CCRI; 25 percent oppose it. But, as in Congress, the debate over CCRI has degenerated into an irrelevant sideshow about justice for women.

CCRI contains two clauses that mention sex discrimination. The first, clause (a), says that: "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." The second, clause (c), says that "Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting."

Borrowed from similar language in the Civil Rights Act of 1964, clause (c) was included to allow sex-based distinctions in narrow circumstances that nearly everyone supports. The state constitution shouldn't require the state to let male prison guards conduct body searches of female inmates, for example, nor should it forbid single-sex sports teams in public universities. For nearly a year, however, Erwin Chemerinsky of the University of Southern California has been arguing that clause (c) would supersede California's current equal protection clause, which the California Supreme Court has construed to say that sex discrimination should be treated just as suspiciously as race discrimination.

Chemerinsky's arguments are tendentious and implausible, even by the standards of partisan debates. Clause (c) says that "nothing in this section" will prohibit bona fide qualifications based on sex. It would have no effect on other sections of the state constitution, such as the equal protection clause, that prohibit sex discrimination. It's similarly farfetched to argue, as Chemerinsky does, that clause (c) would give courts the power to uphold any sex discrimination that they consider "reasonable." If anything, clause (c) might make it easier for the state to discriminate in favor of women, rather than against them, setting up single-sex girls' schools, for example, as a bona fide qualification in public education.

A group of law professors, many of whom oppose CCRI (as I do) because it would reduce the percentage of minority students at Berkeley from 7 to 2 percent, have signed a letter repudiating Chemerinsky's arguments, in the name of "accuracy in public discourse." Unfortunately, public discourse has already been distorted. Democrats who should know better, including President Clinton and Senator Dianne Feinstein, have opposed CCRI on the spurious ground that it would, as George Stephanopoulos put it, "weaken protections against discrimination against women."

In the long run, defenders of affirmative action can only hurt their cause by changing the subject from race to gender. The affirmative action debate in California and in Congress shows the dangers of transforming programs originally targeted at African Americans into a pork barrel of giveaways for groups that have no moral claim to compensation. Crude appeals by special interests may convince skittish legislators to preserve programs that have drifted from their moorings. But citizens themselves, in California at least, are unlikely to be so easily fooled.