Going Nowhere Fast - Affirmative Action Opponents Stymied in the States

By Amy Wood

Vol. 20, No. 1, 1998 pp. 3-11

Across the country, conservatives are realizing that affirmative action will not easily be eliminated through state legislative action. Despite sharp attacks in the courts and reports that state legislators from coast to coast are preparing to eliminate state affirmative action programs, during 1996 and 1997 only thirteen states actually introduced such legislation, and none of these bills was successful. And only one state, Washington, expects to have an initiative similar to California's Proposition 209 on the ballot in 1998. Events in 1998 show that affirmative action is still very much a viable force in America. In fact, those working to repeal affirmative action on the state level see themselves engaged in a difficult and potentially unsuccessful struggle.

Hopefully, this news will end the widespread perception that the foes of affirmative action constitute, as The New York Times put it in November 1997: "The national movement that has often seemed to have the momentum of an unstoppable freight train." It was a prominent report in the Times a year earlier, along with stories in The Atlanta Constitution, The Dallas Morning News, and other papers, that left the false impression that almost half the states were on the verge of eliminating their affirmative action programs.

In November of 1996, Sam Howe Verhovek of The New York Times, wrote that twenty-six states had introduced anti-affirmative action legislation that year. According to his assistant, Verhovek got the figures from the National Conference of State Legislatures (NCSL), a non-partisan organization that tracks state legislation. Yet, a closer look at the NCSL 1996 affirmative action report reveals that while twenty-six states introduced some form of legislation concerning discrimination and affirmative action, fewer than half that number of bills in 1996 actually sought comprehensive repeal. Indeed, some of the legislation was offered to support anti-discrimination laws. Though Verhovek correctly noted that "not a single bill passed," his numbers took on a life of their own.

Similar figures were cited in an October 6, 1997 story by Scott Shepard of The Constitution's Washington Bureau and one by David Jackson in the Dallas Morning News. Jackson reported that "Up to 30 states are preparing referendums similar to Proposition 209," while Shepard stated that nineteen states had anti-affirmative initiatives or legislation in the works. Jackson's figures came from the American Civil Liberties Union, and he admitted that he may have exaggerated a lithe. The ACLU's publicity office in New York claimed their number of twenty-five to thirty states came from, again, The New York Times.

These inflated estimates have had the effect of making the opponents of affirmative action appear stronger and more successful than they actually are. Here are the facts: in the 1997 state legislative sessions, bills amending state constitutions or statutes to repeal affirmative action were introduced in: Arizona, Colorado, Georgia, Michigan, Missouri, New Jersey, New York, North Carolina, Oklahoma, Ohio, and South Carolina. The intent and wording of all of these are similar to Proposition 209, as they seek to "prohibit discrimination and preferential treatment based on race, sex, color, ethnicity or national origin in public employment, public education or public contracting."

In every case in 1997, the bill or referendum was either "postponed indefinitely," or held in committee, the "graveyard" of legislation, as one bill sponsor commented. While the situation is more precarious in Washington State and Ohio, the sponsors in the remaining states lack confidence that their legislation will succeed any time soon.

Affirmative action opponents find themselves in the curious position of claiming that public opinion is on their side, and that the majority of Americans no longer want affirmative action, while their legislative and initiative efforts are thwarted due to lack of support or concern from voters, business and community leaders, and even fellow conservatives. Efforts in Houston, Colorado, Florida, and Georgia demonstrate that defenders of affirmative


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action can be successful. "Not only public opinion, but momentum, is on our side" concludes Brian Komar of the Leadership Conference of Civil Rights.

In at least three states, Oklahoma, Missouri, and Michigan, the battle to eliminate affirmative action has been laid to rest for now. The sponsors of anti-affirmative action bills in these states are not planning to re-introduce the legislation that they pushed weakly last year. Missouri state Senator Peter Kinder (R-Cape Giradeau) says that he did not even press for a hearing of his bill (SJR 3) because he "knew it wasn't going to go anywhere." He does not see similar legislation being enacted in the "foreseeable future."

Likewise, Oklahoma state Representative Bill Graves (R-Oklahoma City) and sponsor of FUR 1010, asserted that affirmative action is "probably pretty safe in Oklahoma." In Michigan, Representatives Michelle McManus (R-Lake Leelanau) and David Jaye (R-Washington Town ship) collectively introduced three pieces of legislation in 1997, all of which were held in committee. An aide to Representative McManus explained that they were encouraged to move last year because the Republicans controlled the House, but this year, with Democrats in control, they feel it "would be fruitless" to press further. Affirmative action is probably secure in the northeast.

While representatives in New York and New Jersey are planning to re-introduce legislation in the next session, they are not expecting the bills to go forward. When controversy heated up in New Jersey in 1997, sponsors of Assembly Bill 2533 lost some support when fellow Republican Kevin O'Toole of Cedar Grove, backed into a "mend it, don't end it" position. O'Toole then pro posed his own compromise bill Assembly Bill 2748, which would give preference to the "economically disadvantaged." Even this more liberal bill was held in committee.

Battleground States

More difficult battles await affirmative action proponents in Ohio, Washington State, and the Carolinas, but recent events in Arizona and Georgia indicate defeat is by no means inevitable. In North Carolina, representative Edwin Hardy (R-Beaufort) is ready to re-introduce his anti-affirmative action referendum, HE 981, in 1999, if he gets re-elected in 1998. As a referendum, Hardy hopes that the legislature will let it through so "the people can decide." If the fate of affirmative action were left to public


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vote, Hardy feels certain that it would be repealed. Despite his optimism, representative Howard Hunter, a Democrat from Conway and former chair of the state Legislative Black Caucus, called Hardy's bill "a dead deal," adding that affirmative action is "a battle we are going to have to fight, but it won't be that bill."

In South Carolina, the situation is more complex but no more hopeful for opponents of affirmative action. Alter a racially divisive debate, the South Carolina House voted 74-37 on February 19, 1998 in favor of a bill that would force state government agencies to drop affirmative action programs, including admissions and scholar ship programs at public colleges.

The bill is currently in the Senate Judiciary Committee, but few believe it will ever pass the majority-Democratic Senate. Representative James McGee III (R-Florence), who replaced the bill author Representative Hunter Limbaugh last November, says, "I can tell you right now it's going to be killed in the Senate."

With this knowledge, House Republicans have continued to push the issue, attempting unsuccessfully to attach an anti-affirmative action measure to the state budget on March 4, 1998. "This time was different because the Black Caucus had an opportunity to tie the bill up," says Representative Joe E. Brown (D-Richland County). "We [the Black Caucus] don't have enough power to pass something, but we do have enough to stop some things."

After the March 4 defeat, the chances look slim for opponents of affirmative action this year. "The only chance that this measure would pass the Senate would be if it had been tacked onto the budget bill," says Micheal Sponhour, who has been covering the issue for The State newspaper in Columbia.

In Arizona, three anti-affirmative action bills were introduced in the 1997 session, two conventional bills and one referendum, like his North Carolina counterpart, the sponsor of the referendum, Tom Home (R-Phoenix) is certain that had his bill passed the legislature, the people of Arizona would have voted to repeal affirmative action. In 1997 as a freshman representative, he backed off from the bill because he did not have support from either Republican Governor Fife Symington, or other Republicans in the legislature. With Republican Governor Jane Hull now in office following the indictment and mid-term resignation of Governor Symington, Home reintroduced his bill in 1998. Home's measure was defeated 11 to l9in the Arizona Senate on February25, 1998 with seven Republicans joining all twelve Democrats.

Anti-affirmative action bills were more successful in Colorado, with one passing the House before being postponed indefinitely. The first, HB 1299, sponsored by


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representative Vicki Agler (R-Littleton), was held by the Senate Judiciary Committee. Representative Mark Paschall (R-Jefferson County) subsequently withdrew his bill, HB 1336, from Senate consideration because he knew he could not battle it through, and if he did, Governor Romer would veto it. In the 1999 session, however, Paschall plans to introduce a referendum, which would both bypass a Governor's veto and not require a two-thirds majority. Agler, however, believes this statute will fail as well be cause of the lack of support in the senate.

Most recently in Ohio, Representative Mike Wise (R-Broadview Heights) and state Senator Gene Wafts (R Galloway) introduced two resolutions modeled after Proposition 209 which would place a Constitutional amendment repealing affirmative action on the November1998 ballot. These resolutions are unlikely to pass. Mark Potts, a legislative aide in Watt's office, is "not overly optimistic." Wafts' bill would need a two-thirds majority, and while there are sixty-six Republicans in a House of ninety-nine representatives, at least two or three Republicans have already come out against the bill. House Speaker, Jo Ann Davidson (R-Reynoldsberg), is quoted as saying, "I would be very surprised to see that resolution come out of committee."

Republicans Lack Consensus

The situation in Ohio and Arizona is representative: bills are stalling because there is not a Republican consensus. In every instance in 1997, anti-affirmative action legislation never made it out of committees, not only because Democratic members voted these bills down, but certain Republicans have as well. In North Carolina, for instance, Hardy's bill was held up in the Judiciary Committee by a tie vote cast by a Republican. Even if brought to a floor vote, these bills would need unanimous Republican sup port to pass, which they do not have, as evidenced by 1998 votes in the Arizona and Georgia legislatures. Eleven Republicans voted for a Democratic-sponsored substitute to defeat a Republican-led repeal of affirmative action programs in Georgia (See Georgia article, page 20).

Those working to eradicate affirmative action in the states explain Republican legislators reluctance to come out strongly behind such legislation as a matter of political expediency rather than a disavowal in principle. According to Ann Kramer of the American CMI Rights Institute (ACRI), a curiously-named national anti-affirmative action organization based in Sacramento, California, "legislators do not have the courage to stand up for this issue."

Indeed, on the federal level, several bills have effectively been killed by leading Republicans, including Newt Gingrich (see "Legislation Blocked," page 5). Affirmative action is not an issue that congressional Republicans want to take head-on in an election year. As stated by John Miller, vice-president of the Center for Equal Opportunity, a conservative Washington, D.C., think-tank, "the anti-preference movement is at a standstill."

When not ignoring or avoiding the issue, Republican responses to these federal and state roadblocks have been twofold. In some cases, Republicans have proposed bills that would force revision of affirmative action programs without ending them all together-the "mend it, don't end it" approach. One example is Kevin O'Toole class- based, affirmative action bill in New Jersey. In Michigan, representative Michelle McManus's two bills (RB 4457 and HB 4459) would only require that public affirmative action policies be reviewed by the state Civil Rights Com mission in order to ensure that they conform to recent Supreme Court decisions, as opposed to the Joint Resolution put forward by her more conservative colleague, David Jaye, which would eliminate affirmative action all together. Although a spokesperson for McManus stated that McManus and Jaye worked together to push these bills, he added that "we are not really confident that we need to eliminate affirmative action everywhere."

Legislators have proposed these "compromise bills" in order to stimulate anti-affirmative action activity, but they have had the unintended effect of stalling action by dividing Republican support As Vicki Agler said of affirmative action in Colorado, "It's not a winnable battle in the legislature it's just not." One alternative is to appeal directly to the public through grassroots initiative drives. Indeed, California ended affirmative action not through its state government, but through such an initiative campaign. The American Civil Rights Institute and its grass roots network the American Civil Rights Coalition were founded by Ward Connerly, the businessman who spear headed California's Proposition 209 campaign, in order to provide support and guidance to groups seeking to organize such efforts. Other states have been slow to go along.

Focus on Washington State

As it stands, only Washington State appears to be poised to overturn affirmative action through the ballot in 1998. Initiative 200 received 280,000 signatures, over 100,000 more than are required for it to appear on the ballot. In the past two years, initiative drives begun in Colorado, Illinois, and Florida have failed due to lack of support-they simply could not obtain enough signatures to make it onto the ballot. An initiative drive in Ohio is still in its earliest stages -- but organizers in that state need 335,000 signatures to qualify for the November ballot. Only twenty-four states even allow initiatives, and the ACRI admits that in many of these affirmative action is not a burning topic. "We can't take this issue to Wyoming,"


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says the ACRI's Ann Kramer, "It's not going to be sold nationwide."

Much can be learned from states that have fried initiative campaigns. Anti-affirmative action campaigners in Washington for Initiative 200 have been successful (indeed, they obtained more signatures than any other initiative in the state's history) due to a shrewdly devised campaign, a supportive Republican-controlled legislature, and the lack of a strong opposition. National figures like Steve Forbes and Bill Bennett offered free publicity in the form of speeches and commercials. (John Carlson, a Tacoma talk-radio host and newspaper columnist, used his show and columns to advertise for the initiative. He has since been fired.) And while Washington's Democratic governor, Gary Locke, has come out against the initiative, Republicans control both the state house and senate. The initiative will first be put before the legislature, which may vote whether or not to enact it immediately into law. Because the legislation is an initiative, it would have no veto power. And even if the legislature votes it down or takes no action, the initiative will go directly onto the November1998 ballot. Activists on both sides of the issue are currently lobbying legislators for their vote. Washington State affirmative action proponents know they have a big battle ahead. The NAACP has formed a coalition with a cross-section of minority and women's groups across the state, which is trying to educate the voters in Washington about the intent of the so-called "Civil Rights Initiative." They had a small victory when they were able to expose that the initiative campaign had duped some African American volunteers into thinking they were working for a civil rights cause.

Language Is Key

Carlson and his compatriots have been very calculating with their use of language, focusing the issue on "preferences," "quotas," and "discrimination" rather than "affirmative action." "I don't mind affirmative action at all," says Carlson, "as long as it is done through expansion and outreach programs." In this way, the initiative campaign appears much more liberal than it actually is. But, the Washington initiative uses the same misleading language that is credited with Proposition 209's success in California.

Experiences in Colorado and Florida, however, demonstrate that initiatives can be defeated. Affirmative action there is, for now, relatively secure, largely due to coalition efforts to sway public opinion against anti-affirmative action campaigns. An initiative drive stalled in the planning stages when it became clear there would not be enough signatures to make it on the November 1998 ballot According to Kramer, the anti-affirmative action forces will re-group next year, and try for the year 2000.

Supporters of affirmative action in Colorado continue to prepare for battle to ensure that Representative Paschail's upcoming statute in l999will be defeated and to lay the groundwork to counter any future initiative action. Members of the Colorado Progressive Coalition, based in Denver, credit the defeat of last year's bills to their efforts.

According to activist Soyun Park, "We were able to kill those bills because we didn't just hold a press conference, but we held press conferences thong with rallies, and other grassroots efforts -- phone calls and letters."


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Bill Vandenberg of the Colorado Coalition adds that members deferred legislative action by rallying outside the capitol and filling committee rooms; with these rooms filled, legislators were forced to find other times and places to convene. The Coalition also gathered support from local businesses, labor organizers, community organizations, and students.

For 1998, the Colorado Progressive Coalition has already mobilized a larger network, called Colorado Unity, made up of minority, women's, and other progressive organizations across the state. They will continue the tactics they used last year, but, in order to be more proactive, they are seeking to broaden their base with a statewide education effort. On Martin Luther King Day, they launched a series of teach-ins and community forums on college campuses and within local communities.

Colorado Unity has modeled its efforts on the successful recent campaign organized in Houston to over come an anti-affirmative action initiative. The Houston initiative, which sought to eliminate affirmative action in public hiring and contracting, and which won enough signatures to be on the November 5 ballot, was defeated by a 54 percent to 44 percent margin. Pro-action coalition efforts rallied businesses, labor groups, women's groups, students, and individuals. The Houston coalition also had the public support of Mayor Bob Lanier, and the financial support of local and national businesses.

Corporate Role Critical

As things stand right now, affirmative action's immediate salvation might just come from corporate support. Initiatives cost as much money as any other kind of political campaign. Initiative planners must raise at least one dollar for every signature they need. According to organizers of Florida's "Civil Rights Initiative" anti-affirmative action drive, their campaign is failing precisely because they have not been able to find adequate financial support. To qualify for the November 1998 ballot, the initiative needed 435,000 signatures by January 1, a goal they did not reach. The problem according to Initiative chairman Pat Bainter, was money. They needed five-hundred thousand dollars, an amount they did not come close to raising through individual donations. Former chairman of the Initiative, Orlando businessman John


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Barry explained that although he received some donations from wealthy individuals, he needed financial support from either the Republican Party or big businesses. California's Proposition 209, for instance, really took off when the GOP came on board, providing one-quarter of the campaign's total finds. Free advertising and publicity has complemented the individual donations that have fueled Washington State's initiative.

According to Florida and Washington organizers, businesses have not backed their campaigns because they fear losing customers. "They don't want people picketing them," says Bainter. Likewise, Carlson explained that Washington businesses have not gotten involved with his initiative because "big business is reluctant to take risks, to get into the fray." But, as experience in Houston shows, businesses are not necessarily neutral on the issue. They are not only reluctant to back anti-affirmative action campaigns for fear of customer boycotting, but they also realize that affirmative action, or at least its primary effect -- diversity -- is good for business. The 1995 Federal Glass Ceiling Report found that affirmative action not only widens the "pool of talent" businesses can draw from in hiring, but also that businesses recognize that they need to reflect the diversity of the marketplace and its customers. Affirmative action defenders can enhance their power to defeat these initiatives by gaining corporate support and dollars.

In Ohio, anti-affirmative action organizer B.J. Kresnye is hoping to circumvent the money problem by seeking support from state Republicans. Indeed, Ohio is the only state with both an initiative in the works and pending legislation in the state legislature. Kresnye says that he does not have the time, energy, or money to see this initiative all the way through to the ballot, adding that "no one has the ability to do what Ward Connerly did, devote heart and soul to the initiative." Kresnye's goal is to goad Ohio legislators into passing the bills put forward by Representative Wise and senator Watts. But, according to Wise's aide, Mark Potts, state Republicans have not paid much attention to Kresnye's actions: "the Republican Party is interested in supporting Republicans, not specific issues."

Honda's FREE Coalition Seizing Initiative

Anti-affirmative action organizers in Florida face the same problem, receiving only lukewarm support from Florida Republican party. Although some Republican legislators and candidates, including Jeb Bush who is running for governor this year, are sympathetic to the goals of the initiative, they are reluctant to take a public stand. A spokesperson from the Senate majority leader's office stated outright that "affirmative action is just not an issue for Senate Republicans," adding that an anti-affirmative action initiative would not be as successful in Florida as in California because "Floridians just don't have the animosity they have in California." Florida anti-affirmative action organizers are planning to regroup and try again in the year 2000. The NAACP in Florida has already begun proactive efforts to ensure affirmative action survival in the state. In order to galvanize public support, the NAACP has formed a coalition with other minority groups and business leaders entitled FREE, or Floridians Representing Equity and Equality.

The purpose of the FREE coalition is not to defeat the initiative, which they do not see as a looming threat. As Larry Colleton, legal redress for the Florida NAACP says, "deep down we don't think this initiative is going anywhere . . . but we are not going to throw caution to the wind either." Director of the Florida NAACP, Leon Russell agrees: "We are not going to attack John Barry [original initiative organizer]....We're not going to give that initiative any publicity; instead we are going to present positive action."

The goal of FREE is to implement a pro-active, pro-affirmative action campaign-to beat affirmative action foes at their own game. Their strategy is two-pronged. First, they have presented a proposal to the commission appointed to review the Florida Constitution (a revision that occurs every twenty years and is underway this year) which asks for an amendment allowing state agencies and Florida's political subdivisions to undertake affirmative action where there is evidence of the current effects of past discrimination. Secondly, FREE is organizing a signature campaign to get this Constitutional amendment on the November 1998 ballot Russell estimates that such a campaign will cost one-and-a-half million dollars, an amount he says can be raised with corporate backing. FREE is proposing a pro-affirmative action initiative. As affirmative action is already in place in Florida "state agencies and its political subdivisions," such an amendment would only bolster its position, and demonstrate the state's commitment.


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California Not the Norm

Ultimately, California may turn out not to have been the norm, nor the standard-bearer, but rather an anomaly. Vicki Agler of Colorado believes that state groups that would otherwise support anti-affirmative action initiatives are laying low because only a few states have similar plans. "The reason [Colorado initiative planners] are backing off," says Agler, "is because they don't want to be the only state." If only one state works toward an initiative, they fear pro-affirmative action groups like the NAACP or the ACLU will pour all their resources into defeating that initiative. By waiting until several states can pool together and put forward initiatives, anti-affirmative action groups can "diversify the resources" of affirmative action supporters.

Whatever state-based movements may attempt, the baffle over affirmative action also will continue to be fought in the courts. Most recently, the Center for Individual Rights, which fought and won the Hopwood case in Texas in 1995 (which banned affirmative action in University of Texas admissions), has brought suit on behalf of two white students against the University of Michigan's affirmative action admissions policies. And in 1997, the U.S. Supreme Court upheld California's Proposition 209 and earlier refused to hear the Hopwood appeal. The justices had decided to hear Piscataway vs. Thiman, which involved the decision to fire a white teacher over a black teacher in the Piseataway, New Jersey, school system, but a settlement by the parties and major civil rights organizations removed the case from theft docket.

The current state-by-state situation demonstrates that affirmative action opponents do not constitute a great tide sweeping the nation, precisely because they are not reflecting public opinion. (See survey article, page 22.) Law makers and pressure groups who are pushing to end affirmative action are facing stumbling blocks, not only from Democrats but from many Republicans as well as from businesses who do not want to alienate their public, and from voters who want to retain affirmative action or at least its effects of diversity and equity. As Brian Komar of the Leadership Conference on Civil Rights explains, "It is clear there is broad enough support among the American public to block or defeat extreme efforts seeking to eliminate affirmative action programs for women and people of color. It is unfair that current coverage does not reflect this reality."

Amy Wood is a graduate student in the institute of Liberal Arts at Emory University.

Sidebar: Compelling Words from Dr. King

Staff

Vol. 20, No. 1, 1998 p. 8

California opponents of affirmative action appropriated the concepts of the civil rights movement, even distorting the words of Rev. Martin Luther King, Jr., to undermine the movement's achievements. King's support for "compensatory" programs is evident in this passage from Why We Can't Wait (New York: Penguin Books, 1964, p. 134).

"Among the many vital jobs to be done, the nation must not only radically readjust its attitude toward the Negro in the compelling present, but must incorporate in its planning some compensatory consideration for the handicaps he has inherited from the past. It is impossible to create a formula for the future which does not take into account that our society has been doing something special against the Negro for hundreds of years. How then can he be absorbed into the mainstream of American life if we do not do something special for him now, in order to balance the equation and equip him to compete on a just and equal basis?

Whenever this issue of compensatory or preferential treatment for the Negro is raised, some of our friends recoil in horror. The Negro should be granted equality, they agree; but he should ask nothing more. On the surface, this appears reasonable, but it is not realistic. For it is obvious that if a man is entered at the starting line in a race three hundred years after another man, the first would have to perform an impossible feat in order to catch up to his fellow runner."

-Rev. Martin Luther King, Jr.

Sidebar: National Anti-Affirmative Action Legislation Blocked

Staff

Vol. 20, No. 1, 1998 p. 5

U.S. Senate Defeats DBE Challenge

Supporters of fairness programs won another victory when an amendment to eliminate the Disadvantaged Business Enterprise (DBE) program for women and minority contractors in the federal highway transportation bill was defeated 58-37 in the U.S. Senate March 6. Every Democratic Senator but one and fifteen Republicans voted to table an amendment by Sen. Mitch McConnell (R-Kentucky) to the Intermodal Transportation Act. Senator Pete Domenici (R-New Mexico) spoke against the McConnell amendment, "The DBE program works to ensure a level playing field for qualified DBEs which have for years confronted discrimination and been blocked out of contracting opportunities." "The DBE program is constitutional," said Sen. Max Baucus (D-Montana) in floor debate on the bill. "It's fair. It works. And it builds more inclusive communities and a stronger economy."

Canady Bill Halted for Now

In a room packed with civil rights supporters, congressional action to end affirmative action was temporarily blocked November 6, 1997 when House Judiciary Committee members tabled HR 1909. But sponsor Rep. Charles Canady (R-Florida) is circulating a "compromise" incorporating very minor substantive changes in language that could be re-introduced.

The vote to kill HR 1909 came immediately after a surge in election turnout November 5 by minority voters in Houston, Texas, against a referendum ending affirmative action. Concerns about election year repercussions prompted four Republicans to help in tabling the measure. "Whether or not the GOP leadership will push the new language in an election year is unclear at this point," says Brian Komar of the Leadership Conference on Civil Rights.

More Battles To Come

Other national legislative challenges are pending. A bill re-authorizing the 1965 higher education act could face limiting amendments. And, the confirmation fight for Bill Lann Lee, President Clinton's appointment as assistant attorney general for civil rights, also hinges on the affirmative action debate. "Despite the victory in November, there will be many more battles to come," says Komar, "so we are redoubling our efforts."