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The Constitution and Title 7 of the United States Code do not allow the federal government to promote women and minorities at the expense of equally qualified white males, according to conservative lawyers who spoke at a forum Thursday.

Such promotions would only be permissible if they were intended to remedy a pattern of past discrimination or to address a racial imbalance in the current workforce, they argued at a forum sponsored by the Federalist Society, an organization of 25,000 conservative and libertarian lawyers.

Some agencies are systematically advancing women and minorities, when these groups are not underrepresented to begin with, according to Curt Levey of the Center for Individual Rights, a right-wing think tank, and Roger Clegg, general counsel at the Center for Equal Opportunity, another conservative think tank.

But Shirley Wilcher, executive director of Americans for Fair Chance, a liberal group that supports affirmative action, said that women and minorities are still underrepresented in government, justifying policies to promote them in favor of white men. The overall number of women and minorities in government is relatively high because in the past, it was easier for these groups to find jobs in the federal government than it was for them to get hired in the private sector, she said at the forum.

But this does not mean that the government should rest on its laurels, she added. It should continue to serve as a model for the private sector because the "playing field" is still nowhere near level for women and minorities. In addition, women and minorities are clustered in lower level jobs, while the Senior Executive Service and upper level management positions are disproportionately filled with males, according to Wilcher.

In contrast, Levey and Clegg claimed that the government has taken its affirmative action policies too far. They built their arguments around Worth v. Martinez, a class action lawsuit the Center for Individual Rights filed Aug. 8 against the Housing and Urban Development Department and the Equal Employment Opportunity Commission.

The suit, filed in D.C. Federal District Court, alleges that HUD's St. Louis office repeatedly passed over Dennis Worth, a GS-13 senior project manager, for promotions in favor of female or minority candidates who were not as qualified for the position.

In 1994, after 16 years at HUD, Worth's office turned him down for two promotions even though an independent panel had rated him as "highly qualified" for the jobs. Since then, the office has rejected Worth for 10 more promotions. All of the positions went to women or minorities, convincing Worth that he was a victim of reverse-discrimination. Of 43 people promoted in Worth's department since 1986, only one was a white male, he claims.

Some of the employees promoted were not as qualified as Worth because they lacked equivalent experience, educational background or seniority, according to Levey. In addition, Worth could not build his credentials, because he was barred from training programs that could have helped him advance, the suit alleges.

In general, HUD's affirmative action program violates the law because it seeks to find racial "imbalances" where none exist and then promotes women and minorities at others' expenses, Levey argued. He said that the agency breaks down workers into small enough groups so that, mathematically, an imbalance is sure to exist within that group. Then HUD uses this imbalance to justify hiring more women and minorities.

The Equal Employment Opportunity Commission supported this alleged pattern of discrimination by encouraging affirmative action practices, even at agencies where there are high proportions of women and minorities, Levey argued. By sanctioning HUD's affirmative employment plan, which holds managers accountable for hiring minorities and women where there are imbalances, the EEOC has "encouraged and aided HUD in promulgating those illegal preferences," the suit says.

But Wilcher, who formerly worked as a manager at the Labor Department, said that she does not recall any overwhelming pressure on managers to comply with affirmative action policies. Contrary to Levey's claim that managers risked being fired for not meeting goals of hiring more women and minorities, Wilcher said she is not sure anybody would have noticed if she failed to meet targets.

As for the more general question of whether affirmative action is an acceptable policy in the federal government, all of the speakers at the forum agreed that their opinion hinged on how they perceived the current status of women and minorities. Those who thought that these groups had made significant progress and no longer encounter much, if any, discrimination, believed it is time to end programs that favor these groups for advancement.

Levey said he does not deny that extensive discrimination existed in the past, but that the "answer is not to rotate victims."

In contrast, Wilcher said she cannot see how anyone would believe minorities have fully recovered from more than 300 years of systematic discrimination.

"[OPM Director] Kay Coles James recently sent out a memo to managers saying that Latinos are underrepresented in the federal government," Wilcher said. "Somebody - and somebody in the Bush administration - seems to think there's a problem here. We haven't reached a level playing field yet."

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