THE VOYEURS against affirmative action have nearly crushed any chance for equality in our lifetime. The U.S. Supreme Court ruled 5-4 last week that race-based affirmative action programs are essentially unconstitutional unless they are "narrowly tailored" to further a "compelling" interest.
Justice Sandra Day O'Connor, who wrote the decision, did not exactly define "narrowly tailored" and "compelling." That was unnecessary, when every affirmative action foe is reaching for champagne and many a proponent is as puckered as a lost soul gripping a flask of Thunderbird.
The Supreme Court has instituted the Rodney King Test. While white people use "colorblind" laws to steal a far higher share of good jobs than their share of the population, workers of color now must labor to expose a racism that is effective precisely because it is blind to the naked eye.
This week's ruling was set up by a 1989 decision that invalidated a program in Richmond, Va., that set aside 30 percent of city contracts for firms owned by people of color. Richmond, like many cities, enacted the program because people understood through 300 or so years of experience, that white men in power have proven themselves incapable of ending their old-boy networks.
The six years since have only proven that you cannot teach a racist system colorblind tricks. Businesses of color, which had received more than 30 percent of contracts in Richmond, now receive less than 10 percent. In Denver, which is 40 percent people of color, the percentage of contracts awarded to firms of color has dropped from almost 20 percent to about 11 percent.
What it means is that angry white Americans have brought the glacier south again. In the 1700s, African-Americans helped win the Revolutionary War and we got to be three-fifths of a person. In the 1800s, African-Americans built the nation on free labor, helped end the Civil War and white America said, OK, you're whole humans in the Census, but you cannot vote in the South and you cannot use our schools, restaurants and train stations.
In the 1900s, African-Americans helped win world wars, and were the backbone of factory production. Today, a third of African-Americans are of middle income. Conservatives started saying this progress was so wonderful, but the real message was that this was all African-Americans were going to get. The unspoken assumption was that it was just fine for two-thirds of African-Americans to be either poor or struggling in the working class, often with no health benefits. Besides, having a bunch of low-income black folks is good for business -- the prison business.
The only thing we have to be thankful for is that each successive racial ice age is a little less frigid than the previous one. The problem is that when the glacier comes down, it stays down at least a half century or so. Such a length of stay renders very questionable just how much of today's progress will withstand the aggressive regression.
Some forward-thinking people in 100 cities, according to the Wall Street Journal, are trying to meet the court's "compelling interest" standard for affirmative-action programs by producing studies that show racial disparities. But while San Francisco successfully used a study to maintain affirmative action, a federal judge said a study was not good enough to save a program in Philadelphia. That program assured a mere 15 percent of contracts for racial minorities -- they make up half the city's population.
As to whether President Clinton will spend taxpayer dollars to prove disparities and protect affirmative-action programs at the federal level, no one knows. Washington economist Andrew Brimmer, who conducts disparity studies, told the Journal, "Technically, it is not difficult at all. It comes down to the will and the resources." The resources are controlled by a Republican Congress that is already writing affirmative action's last will and testament.
Affirmative action was the only time this country, except for Reconstruction, found the struggles of African-Americans compelling enough to assure access to jobs. White America, with no proof that this access has cost it its disproportionate share of jobs, has been given back the needle and thread to narrowly tailor the job market to its liking. The final product cannot be but an ill fit.
There is nothing in the history of this country to suggest that the glaciers of the new racial ice age will do anything but slice through the trees, rip up the roots and leave behind mere moraines of racial progress -- when there should have been mountains.
Derrick Z. Jackson is a Boston Globe columnist.