By Joan Biskupic
When the Supreme Court of previous decades took on the subject of affirmative action, it pushed open the doors of colleges for millions of blacks and Hispanics. Through a series of decisions over the 1970s and 1980s, it forced police and fire departments to promote minorities who had been relegated to low-level jobs. And by entering the world of government contracting, it ushered in a system that guaranteed minority-owned firms a percentage of the lucrative deals that had been the domain of whites only.
Today, an institution that was once the salvation of civil rights advocates is a place to be avoided.
The recent surprise settlement of the Piscataway, N.J., school teacher case, wrenching the dispute away from the justices, attests to that, as does the collective weight of several recent actions on racial policies.
The high court of today disavows the deliberate effort to give special preferences to minorities to increase their opportunities, a social principle woven into the fabric of American life over three decades. A narrow court majority thinks that taking race into account to break down the patterns of segregation can be as bad as segregation itself.
"The court is making its mark on race," said University of Virginia law professor John C. Jeffries Jr., a biographer and former law clerk to Justice Lewis F. Powell Jr., who was the court's early compromise voice on affirmative action. "And it has put people who think affirmative action is still needed on the defensive."
What makes the court's transformation so consequential is that it comes at a time when the justices have become the dominant voice on race policy in America. Both the Clinton administration and Congress have had far more difficulty defining the role affirmative action should play in the nation. Aware of the tumultuous politics surrounding the subject, Hill leaders have sent mixed signals offering, then killing, legislation to curtail affirmative action and the president has struggled for relevancy in his national "conversation" on race.
As a result, the Supreme Court's action and rhetoric have become the touchstone for assaults on racial policies nationwide, from legal attacks on university admissions policies to political challenges on the nomination of Bill Lann Lee for the nation's top civil rights job. The Supreme Court is at the center not merely because it has the last word on legal cases. It is because the Supreme Court, for better or worse, is articulating principles that elected politicians on both sides of the debate studiously avoid.
Some community leaders think the court is on the wrong path: "To say that all is equal now, even in 1997, is ridiculous," said Martha Diaz Aszkenazy, of San Fernando, Calif., a Hispanic who went to college on a minority scholarship and now owns a construction business. "I've never wanted something for nothing. I wasn't raised that way," said Aszkenazy. "I'd rather eat beans and rice than go to welfare. But I got a better education because of the scholarship. . . . And I see the need that is still here, the kids who don't get the same education."
But Ward Connerly and other leaders of the movement against affirmative action are heartened by the court's actions. "The Supreme Court has said the Constitution was not intended to protect only one group: blacks, Hispanics or any other," said Connerly, who spearheaded California's voter initiative against minority preferences in public contracting, hiring and school admissions.
Understanding the court's reversal on affirmative action requires first an understanding of what those two words mean. Tracing largely to an executive order by President Lyndon B. Johnson, affirmative action is rooted in the idea that the constitutional guarantee of equal protection requires more than simply ending illegal discrimination. It means that government should create remedies and incentives for people who are part of groups that suffered bias.
This covers a range of plans intended to "level the playing field," from recruiting policies aimed at attracting a broader pool of candidates to those that explicitly favor minorities because of their race. It is the latter type that concerns the Supreme Court, and that the generally conservative justices have attempted to rein in.
In recent actions, the high court has closely scrutinized programs that give minorities a boost in public contracting by allowing them to come in higher than the lowest bid and still get the contract. Further, it has let stand lower court rejections of university programs that give preference to blacks over whites in admissions or scholarships.
The Piscataway school board case would have taken the Supreme Court into the nation's workplace, both public and private, and potentially created an opportunity for the justices to limit the role that affirmative action plays there.
For that reason, civil rights groups intervened with a $433,000 deal to pay off the white teacher so that she would drop her suit. She had been laid off by the school board to save the job of an equally qualified black teacher in the interest of racial diversity. A federal appeals court ruled that the white teacher had been subject to illegal discrimination and that racial diversity can never be sufficient legal grounds for such an employment decision.
The Supreme Court's shift on affirmative action began in 1989, not coincidentally, during the first full term for Justice Anthony M. Kennedy, the third and final appointee of President Ronald Reagan. Reagan ran on a platform against affirmative action, and, once elected, made it a top priority to reshape the courts from the liberalism of the 1960s and '70s.
"What we're seeing now is the culmination of efforts that began in the early 1980s," said Stanford University law professor Kathleen M. Sullivan.
In 1989, the court for the first time required that the same tough judicial scrutiny it had once used on Jim Crow laws be applied to local government contracting programs. That ruling striking down a Richmond program assuring that 30 percent of city construction funds were given to black-owned firms became the basis for a 1995 decision saying that all federal policies giving racial preferences should be subject to the strictest judicial scrutiny.
Adding to the momentum, the court last year left in place a lower court decision barring the University of Texas from using racial preferences in its admissions program. This fall, the court similarly rejected a constitutional challenge to California's new ban on all race and gender preferences in public contracting and college admissions.
The high court bloc against affirmative action is led by Chief Justice William H. Rehnquist, appointed by President Richard M. Nixon and elevated by Reagan to chief in 1986; Sandra Day O'Connor, appointed by Reagan in 1981; Antonin Scalia, named by Reagan in 1986; Kennedy; and Clarence Thomas, named by President George Bush in 1991.
Because this bloc has but a one-vote majority, a retirement by 73-year-old Rehnquist during Clinton's presidency would have enormous significance, as would a departure by any of the others in the five-justice majority. "I don't wish anyone misfortune, but people do retire," said William T. Coleman Jr., former transportation secretary in the Ford administration and a longtime civil rights advocate who thinks "the court is on the wrong track."
Yet as narrow as the majority is, it has held together for most of this decade.
O'Connor, 67, has been the key vote and critical voice in articulating the potential for illegal "reverse discrimination." The bottom line, she has written for the court, is that racial classifications that benefit blacks and Hispanics must be scrutinized as much as policies that would discriminate harshly against them.
"Good motives," in O'Connor's view, are not enough justification for government to separate people by the color of their skin.
O'Connor believes affirmative action should be used as a modest, temporary response to past discrimination. A former state legislator from Arizona, O'Connor also has narrowly interpreted the court's role, compared to a legislature's, in solving social problems.
But the court's first female justice knows firsthand the pain of discrimination. She went to law school in the 1950s, well ahead of the women's movement, and after graduating at the top of her class, she was initially offered only secretarial jobs.
In the 1980s, O'Connor endorsed some affirmative action and in her recent opinions has not closed the door entirely, saying, "The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it."
But she has found no program that satisfies the court's current test for affirmative action: that only programs that further a compelling governmental interest and are narrowly tailored to meet that interest will be allowed. Lower court judges have interpreted O'Connor's opinions as severely curbing affirmative action.
Kennedy, 61, has demonstrated that treating blacks and whites equally is his overriding concern: "The moral imperative of racial neutrality is the driving force of the [Constitution's] equal protection clause," he has written.
Scalia, 61, strongly opposes the notion of rights for groups, saying, "Under our Constitution there can be no such thing as either a creditor or debtor race."
Thomas, 49, expresses similar sentiment. But the court's second black justice, who in his speeches often invokes the discrimination he felt as a child in Pin Point, Ga., adds this: "There can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination."
Whether most Americans agree with the court is difficult to assess. Richard D. Kahlenberg, whose recent book questions the nation's current race-based affirmative action policies, believes the trend away from such laws actually began with the people: "Strong public opposition to preferences helped elect presidents who, in turn, have appointed conservative justices to the court."
Polls, however, offer conflicting evidence of where Americans stand on the issue, sometimes depending on how the question is asked. A slight majority of people think "affirmative action" programs should be continued. But a Washington Post-ABC News poll last summer found that only 1 in 6 whites but nearly half of all blacks say racial minorities should receive preferences in college admissions to compensate for past bias.
Where polls are more consistent is in showing that the public has more confidence in the judiciary than in Congress or the White House. As public trust in government has eroded in the 1990s, the Supreme Court's ratings of public confidence have stayed comparatively high.
"The court shapes public discourse and opinion," acknowledges Theodore M. Shaw of the NAACP Legal Defense and Educational Fund, which took a lead in brokering the Piscataway settlement. "But I think that the court, like the rest of society, is still struggling with how to continue to resolve the painful legacy of racial discrimination."
The Clinton administration personifies the national quandary over how to handle affirmative action. In the Piscataway case, the administration at first backed the school board's decision to lay off the white teacher, but then this year reversed course and said the decision violated federal civil rights law. President Clinton has expressed enthusiasm for continued affirmative action but has offered few details on how he would "mend it, not end it."
But this is not an easy topic. And at bottom, Clinton, despite his effort to heighten the nation's consensus, has neither the drive to use the bully pulpit against the Supreme Court nor the institutional advantage of the bench itself.
In Congress, the Senate Judiciary Committee refused to confirm Bill Lann Lee, Clinton's choice to be assistant attorney general for civil rights, largely because of his support for programs giving preferences to minorities to compensate for past discrimination. In the House, key Republicans have pressed legislation curbing affirmative action, but others have forced them to back off for the time being.
Rep. George W. Gekas (R-Pa.), who led the effort to kill a bill that would end race-based preferences in federal programs, said he wanted to wait to see how the issue played out in future Supreme Court rulings and state voter initiatives. "Rushing headlong into the issue without building a national consensus will only be seen as political and divisive," he said.
The ultimate question is whether the Supreme Court, in its departure from precedent on affirmative action, is in sync with a national consensus. If it is not, experience teaches, society and other institutions of government will force it into step.
© Copyright 1997 The Washington Post Company