Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, June 20, 1995 TAG: 9507140082
SECTION: EDITORIAL PAGE: A5 EDITION: METRO
SOURCE: PENDA HAIR
DATELINE: LENGTH: Medium
The court, in Adarand Construction vs. Pena, ruled that the most rigorous type of constitutional review - ``strict scrutiny'' - must be applied to federal affirmative-action programs designed to prevent and remedy racial discrimination. But this standard already governs state- and local-government affirmative action. Although demanding, the standard can be met.
The court in fact reaffirmed affirmative action. The ruling was issued in a climate charged by calls from the right to eliminate a policy that is but a modest effort by a troubled nation to become a more inclusive society. The court recognized a national reality in noting ``the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country.'' The majority opinion affirmed that ``government is not disqualified from acting in response to it.''
Strict scrutiny requires that affirmative-action programs be justified by a compelling need, such as remedying or preventing discrimination. The federal programs enacted by Congress, a result of extensive review and analysis of persistent discrimination, satisfy the standards.
Although the Adarand decision did not explicitly address gender-based affirmative action, there is no doubt that women have an important stake in the preservation of affirmative action. The highly respected Glass Ceiling Commission recently concluded that ``serious barriers to advancement remain - such as persistent stereotyping, erroneous beliefs that `no qualified women or minorities are out there' and plain old fear of change.'' Affirmative action is a proactive approach to help eliminate such artificial barriers and ensure equal opportunity.
Federal contracting programs designed to level the playing field for small, disadvantaged businesses were passed by Congress after extensive proof that minority-owned and women-owned businesses had been unfairly excluded. They still are. As Justice Ruth Bader Ginsburg explained in her dissenting opinion, ``Minority entrepreneurs sometimes fail to gain contracts though they are the low bidders, and they are sometimes refused work even after winning contracts.''
These federal programs serve the "compelling'' need of allowing women and minorities an equal opportunity to prove themselves and develop a track record. Affirmative action is not a remedy for long-past sins, nor is it a system of quotas or preferences. The affirmative-action programs enacted by Congress are a modest effort to open the doors of opportunity to persons of color and women in general. Affirmative action is designed to break down the ``old-boy network'' by encouraging procurement and personnel decision-makers to look beyond personal acquaintances, golfing partners and other sources for contracts and employees.
The purpose of affirmative action is to create an environment in which merit can prevail. It does not determine valid job and contract qualifications. Instead, it widens the search for qualified candidates, and allows America to make use of its entire pool of talent.
The Adarand decision is unfortunate in that its change in the rules will put important federal affirmative programs under a cloud of uncertainty and spawn litigation. However, many state and local governments and private institutions have shown that the reality of continuing exclusions justifies carefully designed affirmative-action programs. When the dust settles, most, if not all, federal programs will survive.
The most important aspect of the Adarand decision is the court's reaffirmation of the basic principle of affirmative action. Only two members of the court would adopt the extreme position now being advocated by California Gov. Pete Wilson and others who seek to eliminate all affirmative action. The Supreme Court, like most Americans, supports affirmative action, as long as it is justified and does not involve illegal quotas.
The Supreme Court has made clear that the Constitution permits carefully designed programs to address real discrimination.
Penda Hair is assistant counsel with the NAACP Legal Defense and Educational Fund in Washington, D.C.
Los Angeles Times
by CNB