New community college affirmative action policies announced; California keeps some elements of old hiring programs - Special Report Top 100 Degree Producers

Black Issues in Higher Education, May 30, 1996 by Scott Wright

California Community Colleges officials have changed the system's affirmative action hiring policies to make sure that they don't include any "illegal preferences" for minorities.

But, California Community Colleges Interim Chancellor Thomas Nussbaum says, the changes in the system's policies "preserve the major elements of the faculty and staff diversity program.

"We have done a very careful and deliberate legal review of our policies rather than bowing to the emotional rhetoric of one side or the other," said Nussbaum, who heads the nation's largest higher education system.

Because of its size and influence, California's new policies will be closely examined by others in the community college and higher education community.

The eight-month review began last year at the behest of California Gov. Pete Wilson, who had pressed the state's higher education institutions to do away with policies that gave preference based on race or sex.

The rules change mandates that any affirmative action programs for the system and its 71 semi-autonomous districts that might undergo "strict scrutiny" from the court -- such as setting hiring goals and timetables -- may not be undertaken until specific evidence of "significant underrepresentation" has been established.

However, Nussbaum says, if there is evidence of substantial underrepresentation and race-blind hiring procedures have failed to correct the inequity, the districts may consider race or sex as a factor in hiring,

"With this thorough review, we feel that we've addressed the legitimate concerns that were raised about certain elements of the former language," says Vishwas More, president of the system's 16-member Board of Governors.

"At the same time, the board reaffirms its commitment to diversity, and we promise to keep working with all the vigor we can to see that our faculty, staff and students include the range of California's diversity," he adds.

California and Texas, which is awaiting a U.S. Supreme Court decision on reverse discrimination allegations at the University of Texas Law School, have emerged as major battle grounds over affirmative action policies.

Californians will vote later this year whether to scrap all state-sponsored programs that give preference to minorities.

Public opinion polls over the past year indicates most Californians no longer believe that affirmative action programs are a satisfactory way to eliminate discrimination and, given the opportunity, would ban them.

The California initiative says 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."

But supporters of affirmative action programs maintain that some portions of the measure are so poorly worded that the initiative could be used to discriminate against women and minorities if it passes.

While the California Community College system is preserving some aspects of its affirmative action policies, the University of California's board of regents voted last July to stop admitting students, hiring professors and awarding contracts on the basis of race and sex.

Gov. Wilson, who at the time of the vote by the Regents was a U.S. presidential candidate, had pushed for abolishing the programs saying that such policies are "on the way out and should be, because they are unfair."

Given all the uncertainty, Sheldon Steinbach, the general counsel to the American Council on Education, says the higher education association recently sent out a letter to the presidents of member institutions advising them to "stay the course."

"There is some confusion as to what all this means," Steinbach says. "It is subject to interpretation as to what the appropriate course of action should be. We're advising them to hold steady until they hear to the contrary."

The letter was sent to 1,800 public and private colleges and universities, both two-year and four-year institutions, Steinbach says, adding: "I'm sure there will be more to come on this issue."

Norma Cantu, the Assistant Secretary of Education for Civil Rights, could not be reached for comment on the new California guidelines. But in a recent speech to Texas educators, she advocated seeking a "middle ground."

Cantu said that institutions could opt for affirmative consideration, which she defined as "a practice by which race, ethnicity or gender may be one factor considered among others in evaluating qualified candidates.

"Affirmative consideration does not guarantee success or compromise merit," she said. "Rather, it emphasizes a broad range of qualifications. It is characterized by flexibility.

"The values of respect and mutual understanding will not define the America of the 21st century," Cantu added, "if we do not as a community now work to ensure that appropriate affirmative action programs and strategies remain as a part of our educational mission."