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Court tightens 'test' for racial preferences


WASHINGTON -- The Supreme Court, saying it has let the federal government go too far with affirmative action, ruled 5-4 yesterday that national programs based on race must satisfy the toughest constitutional test or be struck down.

In one of its most important decisions on the issue since it first allowed a racial preference 17 years ago, the court declared that Congress and federal agencies may use race-based benefits only as a last resort, and only when needed to meet "compelling" policy needs.

The main opinion, by Justice Sandra Day O'Connor, left no doubt of its sweep. She declared: "Any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny."

The decision, bitterly dividing the justices, threatens scores of federal plans that pass out public money and opportunities based on race or national origin. There are some 160 such plans now, and all are embroiled in a controversy among Congress, the White House and private groups.

The effect of the ruling on federal programs keyed to gender preferences, most of which grant benefits to women, was unclear. The court weighs gender-based government action +V under less-strict constitutional standards; yesterday's opinion scarcely mentioned gender-based programs.

President Clinton in February ordered a sweeping re-examination all federal affirmative action programs. Yesterday, the White House reacted cautiously to the court ruling, saying that officials and lawyers on the staff were studying it.

At a minimum, the ruling appears likely to make it politically easier for Mr. Clinton to cast aside some affirmative action programs, despite the opposition of civil rights groups.

Senate Majority Leader Bob Dole, who is running for president, said the decision justified his broad-based attack on racial preferences.

"The Supreme Court's decision today is one more reason for the federal government to get out of the race-preference business," Mr. Dole, a Kansas Republican, said. "It's now our responsibility in Congress to follow the court's lead and put the federal government's own house in order."

Looking at bright side

But supporters of affirmative action read portions of the main opinion as signs that racial preferences at the federal level still had a chance of surviving.

Rep. Kweisi Mfume, a Baltimore Democrat who heads the Congressional Black Caucus task force on affirmative action, told a news conference that the decision still "recognizes the need for affirmative action."

Wade Henderson, director of the NAACP's Washington bureau, made the same point but conceded that the ruling "could be a potentially significant blow to federal affirmative action TC programs, particularly for minority business opportunity."

Ralph G. Neas, counsel to the Leadership Conference on Civil Rights, said that "seven out of the nine justices rejected the extreme position of some of the congressional Republicans, urging that we abolish affirmative action."

Last week, Mr. Mfume sharply defended affirmative action programs and warned that economic boycotts and mass demonstrations could result if government scaled back affirmative action. Yesterday, the Maryland lawmaker said that, in the wake of the court decision, "it is even more important that the president take the time to delineate a plan for this vexing problem."

The court's decision yesterday could strengthen efforts -- like the voter initiative in California -- to dismantle affirmative action programs at the state and local level.

The ruling had these key facets:

* It made clear that the Constitution makes no basic distinction between public programs that use race to exclude someone through discrimination and those that use race as a "benign" remedy to make sure a minority is included. The Constitution frowns on both, to assure equality to all races, the court indicated.

* It erased a distinction that gave the federal government more power to adopt affirmative action than state and local governments have been permitted to exercise. Each must be measured by the same strict constitutional limit, the majority said.

The court specifically overruled a decision it had issued just five years ago, giving Congress and federal agencies wide authority to grant race-based benefits or privileges.

That was a highly symbolic part of yesterday's decision, because it wiped out the last decision written for the court by now-retired Justice William J. Brennan Jr., the longtime leader of the court's liberal bloc.

The court also indicated that it probably will abandon a 1980 decision that was the first to uphold a federal affirmative action plan.

Justice O'Connor, who in recent years has led the court toward a more restrictive view of government's power to make decisions based on race, yesterday read key parts of her opinion to a hushed courtroom.

Dissenting opinions

The dissenters said nothing in court but wrote fervently in opposition. Justice John Paul Stevens accused Justice O'Connor of delivering "a disconcerting lecture about the evils of governmental racial classifications." The majority, Justice Stevens said, "disregards the difference between a 'No Trespassing' sign and a welcome mat."

"Strict scrutiny" -- the standard the court said must be used, across-the-board, for race-based programs of government -- means that a racial preference will be nullified unless it serves a "compelling" government policy, and unless it has been drawn up narrowly to achieve that policy.

Justice Stevens, in one of the three dissenting opinions, said that "the label 'strict scrutiny'. . . has usually been understood to spell the death of any governmental action to which a court may apply it."

In reply, Justice O'Connor stressed that the majority was not saying that every affirmative action plan is automatically unconstitutional. Some, she indicated, may pass the rigorous test the court was imposing on racial preferences at all levels of government. One dissenter, Justice Ruth Bader Ginsburg, stressed that part of the O'Connor opinion.

Although five justices supported most of the O'Connor opinion, two of them -- Antonin Scalia and Clarence Thomas -- said they wanted the court to go even further to condemn racial preferences. Justice Thomas, the only black justice, said such programs amount to "racial paternalism" that tells minorities they cannot compete equally.

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

The dissenters, in addition to Justices Stevens and Ginsburg, were Justices Stephen G. Breyer and David H. Souter.

Colorado case

The ruling came in a case involving a white-owned highway contracting company, Adarand Constructors Inc. of Colorado Springs, Colo. The company offered the low bid on a subcontract for guard rails on a federal project in Colorado but lost out to a company with a Hispanic owner.

Adarand challenged the constitutionality of a program that gives prime contractors cash incentives to give subcontracts to minority companies. The program is partly keyed to race because it assumes that minority companies are socially and economically "disadvantaged."

The justices ordered a lower court to consider the constitutionality of that program under the new constitutional standard laid down.


From now on, the Supreme Court said yesterday, federal affirmative action plans must satisfy this constitutional test:

All programs that assign benefits or opportunities by race "are constitutional only if they are narrowly tailored measures that further compelling governmental interests." Courts that review such programs must make sure "that a governmental classification based on race . . . is legitimate, before permitting unequal treatment based on race . . . ."

That test replaces one that had allowed federal affirmative action so long as it served "important governmental objectives."

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