IT IS NOT surprising that a majority of the Supreme Court found a way to uphold the constitutionality of a federal public works program in which 10 percent of the funding was reserved for minority contractors. The court's prior decisions on affirmative action, especially in the field of education, pointed in that direction. But there are warning flags for some other affirmative action programs in what the justices wrote and there is a cutting edge in the dissenting opinions that should make even the staunchest friends of affirmative action think twice.
The unifying theme in the two plurality opinions (in each of which three justices joined) was that Congress has power to set what are, in practice, racial quotas if it determines that this is necessary to remedy the current lingering effects of past discrimination. Congress made such a determination about the construction industry, the justices said; and so it was justified in setting aside some of the federal construction funds for contracts going to firms owned by "Negroes, Spanish-speaking, Orientals, Indians, Eskimos and Aleuts."
Some of those six justices, however, are uncomfortable with this formulation because it introduces into federal law classifications based solely on race. Since most racial classifications are barred by the 14th Amendment's equal protection clause, they rested their votes squarely on the power of Congress to enforce that clause. Congress, in other words, can make up for its failure to enforce non-discrimination in the past by providing remedial measures for those who were harmed. It is not at all clear how the justices who take this view of congressional power will react when faced with quotas or affirmative action programs created not by Congress but by the executive branch of a state or local government.
It was concern about where the use of race as the basis for government action may lead that produced strong dissents from Justices Potter Stewart and John Paul Stevens. Justice Stewart argued that no federal law can be based on race, noting that the only statutes containing such a classification that have been sustained in recent decades were those penalizing the Japanese who lived on the West Coast during World War II. Justice Stevens argued that when race is basis for remedial action, as it was in the federal set-aside program and as it has been in judicial school decrees, such action must have an extremely narrow and specific purpose.
These arguments are not to be taken lightly, especially since there was some evidence that this specific federal program had been enacted as much to help the minorities get "a fair share of the action" as to help them overcome the effects of past discirmination. The idea that race is an appropriate standard for permanent, as distinct from remedial, legislation is one that should not be allowed to seep into federal policy.
Justice Lewis F. Powell seemed to describe accurately the course the court is gradually -- and appropriately -- working out. "The time cannot come too soon," he said, "when no governmental decision will be based upon immutable characteristics of pigmentation or origin. But in our quest to achieve a society free from racial classification, we cannot ignore the claims of those who still suffer from the effects of identifiable discrimination."