Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, July 5, 1990 TAG: 9007050178
SECTION: EDITORIAL PAGE: A-9 EDITION: METRO
SOURCE: GEORGE F. WILL
DATELINE: LENGTH: Medium
The court bestowed, prospectively, its constitutional imprimatur on virtually any racial spoils-system Congress enacts. The court effectively overturned a series of precedents that had at least limited the proliferation of what are euphemistically called "race-conscious" policies.
The court ruled 5-4 that henceforth Congress may assign special benefits to particular government-preferred minorities and may do so without regard to any injury resulting from discrimination. Reverse discrimination is now cut loose from the pretense that it is merely a remedial measure.
During the Carter administration, the Federal Communications Commission, serving that administration's political strategy of courting the Democratic Party's most loyal constituencies, adopted reverse-discrimination that gave certain minorities advantages in acquiring lucrative broadcast licenses. Later, Congress mandated this.
Some injured people argued that this violated the constitutional guarantee of equal protection of the laws. Now the court has baldly asserted that equal protection is not violated if the injury done by reverse discrimination serves "an important government objective."
If the court adheres to this radical new principle, Congress will have a virtually illimitable right to allocate wealth and opportunity on the basis of skin pigmentation.
Hitherto, reverse discrimination has been regarded as constitutionally problematic and permissible only when narrowly tailored as a necessary remedy for past or present discrimination. Now Justice Brennan, joined by White, Marshall, Blackmun and Stevens, has held that the FCC's reverse discrimination is justified by the comparatively trivial objective of promoting broadcasting "diversity."
Never mind the patently meretricious, not to mention racist, assumption that minority ownership necessarily results in particular broadcasting content. And never mind the violence done to the First Amendment by the notion that Congress has the right to legislate what it considers the "correct" content of broadcasting - a politically stipulated mix of ideas.
Justice O'Connor, joined in dissent by Rehnquist, Scalia and Kennedy, stresses the main point: This ruling is another, and huge, retreat from the Constitution's core principle that rights inhere in individuals, not groups.
No one knows where will the court's vast new tolerance of racial preferences lead - other than to an avalanche of litigation about racial classifications to promote any goal that Congress calls "important." All that shall be needed to ratify race-based government is for the court to certify, as in this case, that the reverse discrimination is "benign."
What, you ask, are the court's constitutional criteria of "benign"? "Constitutional"? Are you kidding?
Now the justices must continue to legislate their political whims, bestowing or withholding the label "benign" as the spirit moves them. They must be capricious because there can be no constitutional principle that identifies "benign" disregard of equal protection.
Thirty-six years ago, the court declared school segregation unconstitutional because segregation stamped blacks with a "badge of inferiority." Today the court, and the Congress whose promiscuous use of racial preferences the court now permits, is deepening that stigma.
Under "benign" reverse discrimination, blacks, particularly, are identified as permanent wards of paternalistic government, a race regarded as a perpetual child afflicted by so many pathologies that constitutional guarantees and core American values must be violated for therapeutic reasons.
The court is now so unprincipled, and the political temptation for Congress to legislate racial spoils-systems is so strong, that a strong remedy is required. Instead of amending the Constitution to protect the flag, which does not need such protection, we need an amendment to protect - to restore, really - equal protection of the laws.
The Constitution needs this 27th Amendment: "Neither Congress nor the states may classify persons on the basis of race, sex or ethnicity for the purpose of preferential treatment." Washington Post Writers Group
by CNB