BY MAURICE WILLIAMS
President Clinton said the court's decision on
affirmative action "is not inconsistent" with his views,
noting that he has instructed his staff to conduct a
thorough review of all federal affirmative action programs.
In one ruling the Supreme Court decided that lower federal courts were not justified in ordering the state of Missouri to pay for programs designed to achieve desegregation and improve educational opportunities for minority students in the Kansas City school district.
Sent back for further consideration
In the other decision, the court refused to uphold a
federal affirmative action policy against a Colorado
construction contractor who contended that he suffered
reverse discrimination.
Justice Sandra Day O'Connor wrote, "Courts should analyze cases of this kind under a different standard of review than the one the Court of Appeals applied." O'Connor voided the Court of Appeals judgment and sent the case back "for further proceedings."
The court was divided 5-4 in the decision. Two members of the majority, Justices Antonin Scalia and Clarence Thomas, urged the court to rule affirmative action unconstitutional.
The case stemmed from a 1990 lawsuit filed by Randy Pech, owner of Adarand Constructors, who challenged a program that gives federal highway construction contractors a 1.5 percent bonus if at least 10 percent of their contracts are awarded to minority-owned subcontractors. Pech lost a bid on the guardrail portion of a federal road project. The main contractor selected a Hispanic-owned firm for the guardrail work, which qualified it for an extra $10,000 payment from the government. Pech filed suit and lost the case in the lower federal courts.
The transportation department requires that at least 10 percent of a $151 billion transportation bill passed in 1991 "shall be expended with" minority businesses. In 1993, minority-owned firms earned some $10.5 billion of the $179.4 billion awarded by the federal government - mainly through set-aside programs for oppressed nationalities, women, the disabled and others who are considered "socially disadvantaged."
The June 12 decision "is a setback but not a disaster," Penda Hair, senior attorney at the NAACP Legal Defense and Educational Fund, Inc., in Washington D.C., told the New York Times. "It does put these programs under a cloud of uncertainty."
"Right now women and minority-owned businesses are getting less than 6 percent of all federal contracts," she pointed out.
"I think most of the government's programs have numbers, goals, or timetables that can lead to quotas, which are preferences," said U.S. Rep. Charles Canady, who plans to now present legislation prohibiting the government from offering any benefits on the basis of race or gender.
In 1989 the Supreme Court struck down set-asides for minority contractors in Richmond, Virginia, because they did not meet a standard of "strict scrutiny." The city had determined that 30 percent of its contracting work should go to minority-owned businesses. The 1989 Richmond case resulted in the elimination of scores of local affirmative action programs.
The recent ruling infers that the "strict scrutiny" standard applied in the Richmond case should cover federal programs as well. Referring to the 1989 decison, O'Connor wrote, "We think that requiring strict scrutiny is the best way to ensure that courts will consistently give racial classification that kind of detailed examination." According to the judge, affirmative action programs "are constitutional only if they are narrowly tailored."
The Supreme Court's ruling in the Adarand case effectively overturns one of its earlier precedents on affirmative action - a 1990 decision designed to increase the number of broadcast licenses awarded to minorities.
In the Kansas City desegregation case, the justices stopped short of ordering the plan dismantled, but hinted that they would not view continued federal court control of the school district favorably. The state of Missouri has sought release from a federal court order requiring it to help pay the costs of maintaining magnet schools to attract white students to the majority-Black Kansas City school district.
About $1.5 billion has been spent on the district since the Federal District Court in Kansas City ruled in 1984 that Missouri and the Kansas City school system were both liable for running a segregated and inferior school system. About three-fourths of the 37,000 students in the Kansas City school district are members of oppressed nationalities, mostly Black.