WASHINGTON -- The Justice Department, advising federal agencies on the fate of scores of federal affirmative action
programs, raised the prospect yesterday that many of those plans could not now survive a constitutional challenge.
A 37-page memo was sent to the top legal officers of all government departments and commissions. It is the first "preliminary" attempt by the government to assess the effects of the Supreme Court's recent 5-4 ruling that national programs based on race must satisfy the toughest constitutional test, or cease to exist.
That test says that race cannot be used as a public policy factor unless the government has the strongest reasons for doing so, and even then may be used only narrowly.
The memo, by Assistant Attorney General Walter E. Dellinger, is to guide the agencies' legal staffs in assessing whether to keep, alter or drop 160 federal programs that use race as a factor in deciding who receives public benefits, including jobs, contracts and money.
No program should be cast aside, Mr. Dellinger stressed, until after it has been analyzed under the new Justice Department guidelines. Moreover, President Clinton and White House aides are engaged in their own study of affirmative action plans, a study that may result in new government-wide policies.
Mr. Dellinger's office does not operate solely as a legal counselor within the Justice Department. Its role is to give legal advice that the entire executive branch is expected to follow on major legal and constitutional issues that affect the government.
The Dellinger memo did not point to any particular program that would be in trouble. But it did indicate that these types are now most vulnerable to challenge:
* Plans set up by agencies on their own without being ordered to do so explicitly by Congress. Most plans are agency-drafted, not congressionally mandated.
* Those plans created to assure blacks and other minorities that they would be included, just so that the programs have "diversity" and not specifically to cure past racial discrimination in those programs.
* Those that simply assume that society has a history of bias against minorities, so that the agency's plans are not linked to clear evidence of discrimination or to the leftover effects of discrimination.
* Those set up without any significant study of whether discrimination was a problem that needed a solution from that particular agency.
* Those that use numerical quotas or "set-asides" rather than flexibly reacting to past discrimination or its present effects.
* Those that have no provision for periodic review to determine whether the plans still are needed.
* Those that use race as the sole factor in deciding who is included rather than as one factor among several.
The Dellinger memo said that programs in those categories may not necessarily fail the constitutional test newly imposed by the Supreme Court, and that government departments may still be able to prove a need for some affirmative action to deal with racial bias in the nation.
But the document stressed the need for officials to build a strong case to justify the use of race, to make sure that race is used in as narrow a way as possible, and to weigh alternative programs not based on race before setting up one controlled by race.