Protecting the Privileged


Washington. -- The many-sided Supreme Court decision in Adarand Constructors v. Pena Monday did not end the national debate over affirmative action, but it offered a valuable set of arguments over governmental actions based on race.

Justice Sandra Day O'Connor leaned heavily on the post-slavery Fourteenth Amendment declaration that "No state shall . . . deny to any person within its jurisdiction the equal protection of the laws." She was using it not to protect those still bearing the scars of indentured servitude, but those who historically have been privileged.

Foes of all affirmative action, of which there are many kinds, wanted Justice O'Connor and the court to say that no Caucasian male may ever be disadvantaged in any way in order to make amends for generations of discrimination against women, blacks, Hispanics and others.

Justice O'Connor would not go that far. She said that courts must give "strict scrutiny" any time any level of government makes classifications based on race, however "benign" or well-intentioned those classifications may seem.

The irony -- bitter and infuriating for millions of black Americans -- is that it was Clarence Thomas, the only black justice, who spoke loudest and most irresponsibly against affirmative-action programs.

"Under our Constitution, the government may not make distinctions on the basis of race," Justice Thomas wrote. "It is irrelevant whether a government's racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged."

Justice John Paul Stevens said he found unpersuasive "Justice Thomas' extreme proposition that there is a moral and constitutional equivalence between an attempt to subjugate and an attempt to redress the effects of a caste system."

He said, "Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society. No sensible conception of the government's constitutional obligation to 'govern impartially' should ignore this distinction."

Justice Thomas, who is close to a pariah in black America, injected another argument against affirmative action that is popular among some whites. He said, "These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are 'entitled' to preferences."

Justice Stevens noted that "No beneficiaries of the specific [contract set-aside] program under attack today have challenged its constitutionality, perhaps because they do not find the preferences stigmatizing, or perhaps because their ability to opt out of the program provides them all the relief they would need."

I defy Justice Thomas to name a minority businessman who got a good contract through affirmative action, governmental or private, who complains that he has thus been stamped as inferior.

The Supreme Court will revisit this issue again and again. It is equally clear that Justice Thomas will continue to make arguments that give cover and "moral" justification to those justices who want to protect or enhance the powers and privileges of the American majority.

Carl T. Rowan is a syndicated columnist.

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