LEADING ARTICLE: Still unequal before the law

AMERICA's affirmative action policies - giving preferential treatment to disadvantaged groups - are a reminder of the days when the left could be as bold and outrageous in its ideas as the right now is. Not until 1954 did a Supreme Court ruling outlaw racially segregated education. Later, Lyndon Johnson's civil rights legislation removed other forms of discrimination, creating what people then thought was equality of opportunity. Americans would have equal access to the best jobs and the best education, regardless of race, creed or sex. But the results remained stubbornly unchanged: blacks still failed to get into university, still failed to make law school, still failed to put down roots in the middle-class suburbs. This was an enormous blow to the collective self-image of liberal America. The country had always prided itself on its ability to remove barriers to individual advancement. Americans had developed a huge battery of "objective" tests designed not, as the English exam system is, to assess acquired knowledge but to quantify pure, innate merit and aptitude. In the past, blacks had suffered terrible discrimination; either they were barred from the tests or they were in no fit state to take them. With the barriers removed, liberal America had expected blacks to join full- heartedly and successfully in the great meritocratic free-for-all.

It was concluded that, if blacks were still failing, the system was flawed. Perhaps the tests were culturally biased; perhaps testing itself was biased; perhaps centuries of discrimination had left blacks with a sense of inferiority which made it impossible for them to compete. So affirmative action was developed as an attempt to achieve equality of outcome as well as of opportunity. Universities and colleges took background, as well as test scores, into account when selecting students. At Berkeley, California, for example, test scores would give blacks 1.4 per cent of the places; because the scores are modified by ethnicity, blacks get 6.4 per cent. Minorities were given preference in hiring policies. Minority-run firms, or those that had an ethnically balanced workforce, were given preference in the bidding for many state and federal contracts.

But now liberal America is in headlong retreat. For federal contracts, the Supreme Court has, in effect, ruled that it is unconstitutional. The University of California has just decided to end affirmative action in student admissions and staff recruitment.

The architects of the policy would not necessarily regard this as a disaster. They saw affirmative action as a temporary expedient to give black competitiveness a kick-start; after a generation or two, they thought, blacks would compete on equal terms. Has it turned out that way? In some senses, yes. A black middle class has indeed emerged. Blacks occupy top positions in government, education, the professions and the armed forces. But in other senses affirmative action has been a complete failure. The majority of blacks are, if anything, even worse off: a black man is still twice as likely to be unemployed as a white man, while 46 per cent of black children are born into poverty.

Affirmative action has proved, in the end, almost unworkable, if only because of the problems of definition. How black do you have to be to qualify? Which minorities deserve how much special treatment? But that should not blind us to an important lesson. America, like Britain, has become more unequal over the past 15 years. And no number of special programmes can create true equality of opportunity if society is moving to greater inequality. It is hard enough to pull yourself off the bottom in any circumstances. How much harder must it be when your parents, your neighbourhood, your school, everything around you, is slowly sinking, when hope is receding rather than growing? That is what is happening to the majority of blacks and Hispanics in America. If affirmative action has helped some of their fellows to escape into law offices and the suburbs, that only makes them more conscious of their plight, not less.

Affirmative action was a brave attempt to correct the wrongs of the past. But preferential treatment cannot help disadvantaged groups if deeper social and economic forces are working against them. "Mend it, don't end it," is what Bill Clinton has to say about affirmative action. He would do better to think about how he would mend his divided country.