Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, June 13, 1995 TAG: 9506130081
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
SOURCE: The Washington Post
DATELINE: WASHINGTON LENGTH: Medium
The 5-4 ruling in a Colorado highway contracting case is unlikely to resolve the growing public controversy over whether set-asides, hiring goals and scholarship programs for minorities are justified by the experience of discrimination or constitute unfair preferences that generate ``reverse discrimination'' against whites.
Instead, Monday's decision sets the stage for a multitude of court challenges against federal programs for minorities, and it comes at a time when affirmative action is becoming a major point of contention between President Clinton and his likely Republican challengers.
In refusing for the first time to uphold a federal affirmative action policy, the court said that such race-based policies enacted by Congress must now survive the same judicial standard that state and local programs have faced since 1989. Known as ``strict scrutiny,'' it is the toughest judicial standard to meet. To survive, a program must serve a compelling governmental interest and must be narrowly tailored to address identifiable past discrimination.
``Government may treat people differently because of their race only for the most compelling reasons,'' Justice Sandra Day O'Connor wrote for the court.She said the Constitution's guarantee of equal protection of the laws protects ``persons, not groups'' of people.
``It follows from that principle that all governmental action based on race - a group classification long recognized as ... irrelevant and therefore prohibited - should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.''
The court offered no examples of federal permissible policies and generally the majority denounced all government distinctions based on race.
The ruling in Adarand Constructors vs. Pena, however, does not strike down any specific federal programs to compensate minorities for the experience of discrimination, not even the Small Business Administration (SBA) contracting program that was the subject of the case. Nor does it directly address affirmative action programs aimed at women. And, the court left the door slightly open for justifying some affirmative action as a remedy to cases of pervasive and systematic discrimination.
Because the ruling ``alters the playing field in some important respects'' O'Connor said that a federal appeals court should now re-examine the SBA affirmative action program under the new standard.
``I don't think it's the end of all affirmative action programs, by a long shot,'' said Steven Shapiro, legal director for the American Civil Liberties Union. ``My concern is that in the hands of an unsympathetic judiciary and in this political climate, many programs will not survive.''
William Perry Pendley, who represented the white highway contractor in the case, said, ``I don't know of any federal programs that can survive this judicial scrutiny, given how they have been piggy-backed on each other ... with few or no findings of past discrimination or an examination of where the problem really is.''
He said he thinks the highway program is ``a dead duck.''
The original lawsuit in the case was brought by Adarand Constructors, a white-owned Colorado Springs-based firm that turned in a lower bid but still lost out on a guardrail project in the San Juan National Forest to a Hispanic-owned company. The contract was decided on the basis of an SBA policy which, according to the court, ``presumes'' that blacks, Hispanics, American Indians and Asians are ``socially disadvantaged.'' Acting on that policy, the Department of Transportation gives money bonuses to government contractors that subcontract at least 10 percent of their work to disadvantaged firms.
Adarand sued in 1990, contending that the subcontracting policy violated constitutional guarantees of equal protection and due process.
Adarand lost in lower courts, but Monday the Supreme Court said those courts were too lenient in assessing the government's race-conscious policy. The justices returned the case to lower courts to be reviewed under the strict scrutiny standard.
Monday's decision in the Adarand case overruled a 1990 decision, narrowly won by now-retired Justice William Brennan, that upheld an effort to increase black ownership of broadcast licenses. That case said congressionally enacted policies are entitled to a more lenient equal-protection standard.
The Adarand decision highlighted a change in the court's majority over the past five years. The strength of this majority will be tested when the court rules on the constitutionality of voting districts drawn to increase the representation of minorities in Congress. A decision is expected within weeks.
by CNB