home *** CD-ROM | disk | FTP | other *** search
- LAW, Page 60A Blow to Affirmative Action
-
-
- The court strikes down a plan to aid minority businesses
-
-
- Ronald Reagan never made any secret of his distaste for
- affirmative action -- the attempt to remedy past discrimination
- by giving preferential treatment to minorities. Last week, only
- days after Reagan left office, his goal of reining in such
- programs got a major boost from the Supreme Court. By a 6-to-3
- vote, the court struck down a Richmond ordinance intended to
- guarantee blacks and other minorities a greater share of the
- city's construction contracts. The decision not only threatened
- similar programs in 36 states but also potentially opened the
- door to legal attacks against other racially based government
- schemes.
-
- The Richmond case began in 1983, when the black-dominated
- city council approved an ordinance setting aside 30% of the
- dollar amount of its municipal projects for minority-owned
- construction firms. The council found that although Richmond's
- population was half black, less than 1% of all public-works
- contracts had gone to minority firms. But Justice Sandra Day
- O'Connor, writing for the majority, charged that the city had
- not specifically proved a level of past discrimination that
- would support its 30% set-aside rule. Wrote O'Connor: "An
- amorphous claim that there has been past discrimination in a
- particular industry cannot justify the use of an unyielding
- racial quota." Although the Richmond law was intended to help
- minorities, she argued, quota systems are inherently dangerous.
-
- A key component of the court's ruling was the requirement
- that all government distinctions based on race be subject to
- "strict scrutiny." This means that public-sector
- affirmative-action programs are valid only if they serve the
- "compelling state interest" of redressing "identified
- discrimination." Justice Thurgood Marshall, in a bitter dissent
- joined by Justices William Brennan and Harry Blackmun, called
- the decision "a deliberate and giant step backward in this
- court's affirmative-action jurisprudence."
-
- Legal experts see trouble ahead for set-aside plans and
- other government-sponsored racial remedies. "It's clear that
- affirmative-action programs will be harder to justify,"
- concludes Professor Laurence Tribe of Harvard Law School.
- Officials around the country expressed concern over how their
- plans would fare under the ruling. The National League of Cities
- found the decision "troubling in what it says about the capacity
- of states and cities to govern at all in some matters."
-
- Some experts took a political view of the ruling. Professor
- Charles Abernathy of Georgetown University Law Center
- attributes the court's decision to the fear that as blacks take
- power in cities such as Richmond, laws will be passed to benefit
- blacks over whites. Observes Abernathy: "The court is saying
- that it won't stand for black leaders using power to reward
- their friends at the expense of others."
-
- Despite the new limitations, the death knell has not yet
- sounded for affirmative action. Last week's decision did not
- affect plans by private companies to increase minority hiring,
- nor did it nullify the Federal Government's set-aside program.
- Some experts, moreover, feel that local governments may be able
- to document past inequities in a way that would satisfy the
- court. Says Parren Mitchell, chairman of the Minority Business
- Enterprise Legal Defense Fund: "The evidence of discrimination
- necessary to justify affirmative action on behalf of minority
- businesses exists."
-
- Another way to salvage set-aside programs might be to use
- flexible targets rather than quotas. Minority-owned firms in
- Atlanta, for example, have won $300 million worth of business
- since 1974, when the city set a minority "goal" that now stands
- at 35%. Mayor Andrew Young optimistically predicts that "this
- ruling will not affect minority participation." That remains to
- be seen, however, as the expected flood of challenges by white
- plaintiffs works its way through the courts.
-
-