The incoming Republican chairman of the Senate Judiciary Committee, the very conservative Sen. Orrin Hatch of Utah, wasted no time in firing a warning shot across the bow of the Justice Department's Civil Rights Division. He said shortly after Election Day that the administration was "reversing long held positions" in a way that "looks almost unethical."
He seems most upset about Assistant Attorney General Deval Patrick's announcement that the department has reversed its stand in an affirmative action case. Until recently the department had opposed the Piscataway, N.J., school board's budget-cutting decision to dismiss a white teacher and retain a black one solely on the basis of race.
George Bush's Justice Department sued to get that decision overturned and won. That ruling is being appealed, and President Clinton's Justice Department has now formally asked that it be overturned.
That sort of shift often happens when one party takes over the White House and Justice Department from the other. It is not even close to unethical. Candidate Clinton pledged his support for affirmative action and was elected with the support of voters for whom that is extremely important and who take an expansive view of what constitutes affirmative action.
But the department was right the first time. The trial judge's ruling should be upheld. What is called "affirmative action" at Piscataway High School is neither wise nor fair in our view. It has not been in the view of the Supreme Court, either.
Up to now, affirmative action has been approved by the courts for only two purposes. One, to remedy the results of previous racial discrimination; two, to overcome a "manifest imbalance" in the work force. We have long and strongly supported such efforts. But neither of those was present in Piscataway.
There had never been discrimination in hiring and firing, and the percentage of blacks on the faculty is and has been greater than the percentage of blacks in the county and state teacher work forces.
Justice now says there should be a third justification for making race the criteria: diversity of faculty. That is why, when faced with having to lay off one of two teachers of equal seniority, it chose the white solely on the basis of race. Such a policy "unnecessarily trammels on the rights of non-minorities," the trial judge wrote. That is obvious.
What is also obvious, it seems to us, is that in the long run such racial favoritism can be harmful to its intended beneficiaries. It can "lead to a politics of racial hostility," as Justice Sandra Day O'Connor put it in a 1989 Supreme Court opinion. Indeed, part of the explanation for 1994's election outcomes is just that. Many white voters believe "affirmative action" has come to mean "spoils system." And as a direct result of that, it is important to note, Senator Hatch is going to be Chairman Hatch.