Court Toughens Standard for Federal Affirmative Action

The Supreme Court yesterday jeopardized a broad range of federal affirmative action programs with a ruling that set a tough new standard for justifying policies designed to benefit blacks, Hispanics and other minorities.

On the Web Full text of the Supreme Court's Adarand Constructors Inc. v. Pena decision from Findlaw Internet Legal Resources

The 5 to 4 ruling in a Colorado highway contracting case is unlikely to resolve the growing public controversy over whether set-asides, hiring goals and scholarship programs for minorities are justified by the experience of discrimination or constitute unfair preferences causing "reverse discrimination" against whites.

Instead, yesterday's decision sets the stage for a multitude of court challenges against federal programs for minorities, and it comes at a time when affirmative action is becoming a major point of contention between President Clinton and his likely Republican challengers.

In refusing for the first time to uphold a federal affirmative action policy, the court said that such race-based policies enacted by Congress must now survive the same judicial standard that state and local programs have faced since 1989. Known as "strict scrutiny," it is the toughest judicial standard to meet. To survive, a program must serve a compelling governmental interest and must be narrowly tailored to address identifiable past discrimination.

"Government may treat people differently because of their race only for the most compelling reasons," Justice Sandra Day O'Connor wrote for the court. She said the Constitution's guarantee of equal protection of the laws protects "persons, not groups" of people.

"It follows from that principle that all governmental action based on race – a group classification long recognized as . . . irrelevant and therefore prohibited – should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed."

The court offered no examples of federal permissible policies and generally the majority denounced all government distinctions based on race. The ruling in Adarand Constructors v. Pena, however, does not strike down any specific federal policies, not even the Small Business Administration (SBA) contracting program that was the subject of the case. Nor does it directly address affirmative action programs aimed at women. And, the court left the door slightly open for justifying some affirmative action as a remedy to cases of pervasive and systematic discrimination.

Because the ruling "alters the playing field in some important respects," O'Connor said that lower courts should now reexamine the SBA affirmative action program under the new standard.

"I don't think it's the end of all affirmative action programs, by a long shot," said Steven Shapiro, legal director for the American Civil Liberties Union. "My concern is that in the hands of an unsympathetic judiciary and in this political climate, many programs will not survive."

William Perry Pendley, who represented the white highway contractor in the case, said, "I don't know of any federal programs that can survive this judicial scrutiny, given how they have been piggybacked on each other . . . with few or no findings of past discrimination or an examination of where the problem really is."

He said he thinks the highway program is "a dead duck."

The original lawsuit in the case was brought by Adarand Constructors, a white-owned, Colorado Springs-based firm that turned in a lower bid but still lost out on a guardrail project in the San Juan National Forest to a Hispanic-owned company. The contract was decided on the basis of an SBA policy that, according to the court, "presumes" that blacks, Hispanics, American Indians and Asians are "socially disadvantaged." Acting on that policy, the Department of Transportation gives money bonuses to government contractors that subcontract at least 10 percent of their work to disadvantaged firms.

Adarand sued in 1990 contending that the subcontracting policy violated constitutional guarantees of equal protection and due process. Adarand lost in lower courts, but yesterday the Supreme Court said those courts were too lenient in assessing the government race-conscious policy.

Federal affirmative action blossomed in the 1960s and 1970s as federal lawmakers tried to compensate for the remnants of segregation and attitudes that made it hard for minority-owned businesses to prosper. Virtually every federal agency uses some sort of affirmative action, whether in grants and procurement, or contracting and hiring. An estimated $10 billion a year in contracting alone is at stake. Yesterday's decision in the Adarand case overruled a 1990 decision, narrowly won by now-retired Justice William J. Brennan Jr., that upheld an effort to increase black ownership of broadcast licenses. That case said congressionally enacted policies are entitled to a more lenient equal-protection standard.

The Adarand decision highlighted a change in the court's majority over the past five years, which has meant a new court suspicion of government policies giving special advantage to minorities and an emerging desire for race neutrality.

This view was also revealed in the court's school desegregation ruling yesterday.

The strength of this majority will be further tested when the court rules on the constitutionality of voting districts drawn to increase the representation of minorities in Congress. A decision is expected within weeks.

Joining O'Connor in the majority in the Adarand case were Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

Thomas, the court's only black justice and one of its most vocal opponents of race-based policies, added in a separate statement that while financial incentives to hire minority subcontractors may be motivated by good intentions, "the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution."

Scalia also wrote separately to say affirmative action could never constitutionally "make up" for past racial discrimination. "{U}nder our Constitution there can be no such thing as either a creditor or a debtor race."

Dissenting were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Stevens, joined by Ginsburg, lashed out at the majority for abandoning its usual deference to congressional decisions and for equating race-based policies that hurt blacks with race-based policies that help.

"There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination," Stevens said.

O'Connor said that strict scrutiny need not be "fatal" to all affirmative action.

"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."

Souter, joined by Ginsburg and Breyer, tried to soften the force of O'Connor's words by noting that most of the justices still believe that some circumstances would permit programs aimed at remedying the effects of past invidious discrimination.

Ginsburg, joined by Breyer, also wrote a separate statement to say that elected officials, rather than judges, should be in charge of improving affirmative action.

O'Connor's decision puts federal set-asides on the same plane as state and municipal race preferences.

In 1989, the court rejected a Richmond public works program that set aside 30 percent of construction funds for minority contractors and said such local programs deserve the most rigorous judicial scrutiny.

The ruling also guts prior court opinions that said definitively or indirectly that Congress deserves greater court deference on race-based policies.