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THE ROOTS OF THE DEBATE

ffirmative action policies date from an executive order signed by President John F. Kennedy in 1961: Government contractors were obliged to "take affirmative action to ensure that applicants are employed and treated during employment without regard to their race, creed, color, or national origin." Part of a wider effort to end segregation and bring blacks into the American mainstream, the policy was given teeth in September 1964. That's when President Lyndon Johnson signed Executive Order 11246, taking affirmative action policy-making and enforcement away from the White House and delivering it to the newly created Equal Opportunity Employment Commission at the Department of Labor. More specific than the order that preceded it, the Johnson policy required federal contractors to search actively for qualified minorities to compete in a hiring process whose final outcome was to be color-blind. Unlike the series of civil rights legislation of the era passed by Congress, the policy was never publicly debated or subjected to a congressional vote.

The first substantive Supreme Court decision on affirmative action policies was the Bakke case of 1978, which stemmed from medical student Alan Bakke's suit against the University of California, Davis, for discrimination. Five black students with lower GPAs and test scores had been admitted to the university's medical school while he was denied admission. In a multifaceted decision that perhaps illustrates the national confusion surrounding many affirmative action policies, the court ruled against the separate admissions pool for minorities used by the medical school, but found that race could be used as a "plus factor" in admissions decisions if the goals of such policies were a "diverse" student body. This ruling set the stage for "diversity" rather than redress of past injustices to take over as the justification for affirmative action goals.

Over the past couple of decades, Republicans as well as Democrats have supported affirmative action--from the Nixon administration, which extended goals and timetables to women, to the Bush administration's Civil Rights Act of 1991, which endorsed the broad principles of affirmative action. All that changed with the 1994 elections.

As President Clinton has groped for middle ground on the issue, declaring that such policies "must be carefully justified and must be done the right way," other politicians such as Governor (and onetime contender for the Republican presidential nomination) Pete Wilson of California have taken the political football and tried to run with it. Last summer, Wilson successfully lobbied the board of regents to strike down the state university system's affirmative action programs in student admissions and faculty hiring alike. California residents will have the chance to vote on a ballot initiative abolishing all state-sponsored affirmative action programs.

At Duke, the debate over affirmative action is taking place as university officials acknowledge that efforts over the past seven years to recruit more black faculty members have been slow to succeed, due in large part to the small pool of qualified black applicants available and difficulty retaining black faculty who are often wooed by other institutions. As of January 1, 1996, there were forty-two black professors at Duke, representing 2.59 percent of 1,616 tenured or tenure-track positions at the university.

Current debate on campus can be traced to a 1988 plan called the Black Faculty Initiative, which mandated that all of the university's fifty-six hiring units add a black faculty member within five years. Enforcement guidelines for the plan would have required units that failed to meet this goal to submit new recruitment plans to the dean of their school for approval and to receive pre-approval from the provost and the Office of Equal Opportunity for any job offer to a candidate who was not black.

"Duke entered late into this game and wanted to do something very concrete," says Myrna Adams, vice president for institutional equity at Duke. "The objectives outlined in the initial statement were, I thought, pretty innocuous: We wanted to have one black faculty member in each department. That was pounced on by some in the Duke community as a quota." Adams reiterates that the goal of a black faculty member in each department was in part difficult to achieve because of a lack of black Ph.D.s in the qualified labor pool, often more so in the sciences and engineering than in other fields. "I don't think, however, this plan would have been unrealistic if it hadn't been surrounded by all of that baggage."

A new plan for the Black Faculty Initiative adopted in 1994 calls for a focus on broad institutional goals rather than department goals. The plan still emphasizes that every department is expected to make a contribution to increasing the number of black faculty on campus, but efforts have been widened to include such general goals as stimulating minority undergraduates to pursue advanced degrees in science and encouraging the success of minority graduate students, as well as ensuring that black candidates are part of the applicant pool interviewing for faculty vacancies. Narrow hiring targets have been abandoned and enforcement provisions for the new plan give school deans the responsibility to report on changes within their respective schools to the university provost.

In assessing affirmative action efforts at Duke, law professor William Van Alstyne points out that the standards for affirmative action policies are substantially different between public and private institutions. While state universities such as UNC-Chapel Hill are subject to the equal protection clause of the Constitution, making it unlawful to base decisions substantially on race unless a history of unlawful discrimination exists, private institutions are subject only to statutes.

Van Alstyne says that while the basic principles of affirmative action are secure, recent court decisions and a diverse range of pending cases are all considering the same legal principle: "The fundamental question for court decisions on these issues is, 'How can government use race to allocate rights among human beings?' The laws of this country have always said that you are not a captive of your race or religion. The equal protection clause of the Constitution says that the government has no right to allocate opportunity on the basis of race, whether an individual is black or white."

Meanwhile, a federal appeals court decision in March sharply limited the use of affirmative action at the law school of the University of Texas. Writing in The New York Times, national education correspondent Peter Applebome '71 said the decision "has shaken the nation's colleges and universities by threatening to dismantle admissions policies that give preferences to minorities." In a seeming snub of the Bakke decision, the three-judge panel rejected using race or ethnicity as a factor in admissions, even for "the wholesome practice of correcting perceived racial imbalance in the student body."