Affirmative Action Under Attack Preferential Treatment Of Minorityowned Businesses On The Defensive In High Court, Congress And States

On the last day of his remarkably long and fertile career on the U.S. Supreme Court, liberal Justice William J. Brennan Jr. pulled off a seeming miracle.

The court was veering rightward, yet Brennan managed to cobble together a bare majority to approve preferential treatment for minority businesses seeking broadcasting licenses. “Scrape me off the floor,” exclaimed a civil rights lawyer in disbelief.

But for the wide range of federal preferences for minorities and women known as affirmative action, that surprising day in June 1990 may have been the last hurrah.

Affirmative action, which has spawned resentment for years, is on the defensive in the high court, the Republicanized Congress and elsewhere. A campaign against state government preferences is under way in California, which often is an incubator of nationwide political and social trends.

At the Supreme Court, opposition to racial and gender preferences by government now commands a majority. The only question, court observers say, is how far the justices will go in moving away from past endorsements of federal affirmative action programs.

Today they will hear arguments on the validity of a government program that benefits highway construction businesses owned by members of minorities or women.

White business partners Randy Pech and Steve Goeglein complain that their small firm, Adarand Constructors of Colorado Springs, Colo., submitted the lowest bid for a subcontract for highway guardrails but lost out to a Hispanicowned company because of a federal law favoring minority-owned businesses.

“We don’t discriminate, so why should we be punished?” Pech has asked.

The reason for the preference, government officials respond, is that Congress determined in 1987 that persistent barriers still prevent members of minorities and women from competing successfully in the highway and mass transit construction industry.

“Congress’ choice of a limited racebased remedy was repeatedly debated and reaffirmed,” U.S. Solicitor General Drew Days told the high court in a brief.

But, of course, Congress is far different now. With Republicans in charge, there is a real chance that anti-affirmative action legislation can be passed.

Already, alumni of the Reagan and Bush administrations are quietly drafting a bill, to be introduced next month, that would prohibit racial and gender preferences in all federal government jobs.

They are working with the approval of several Republican legislators, including Sen. Phil Gramm, R-Texas, and House Judiciary Committee chairman Henry Hyde, R-Ill.

The GOP strategy is to try to eliminate preferences in each federal program as it comes before appropriations committees and schedule congressional debate on the broad legislation next fall.

If the bill passes, President Clinton would face a political dilemma. He could sign it and enrage a large part of his Democratic constituency - or he could veto it and risk making affirmative action a major 1996 campaign controversy.

“It would be a brilliant strategy move on the part of Republicans,” said Clint Bolick, litigation director of the conservative Institute for Justice who is working with the antiaffirmative action task force.

The legislation would be modeled after a proposed initiative for the 1996 state ballot in California.

The California proposition would knock out state preferences for minorities and women in the workplace, college admissions and government contracts.

Recent polls indicate that most Americans oppose affirmative action, and civil rights advocates are clearly worried.

“I’m afraid it may become a wave, just like other attacks on the poor and minorities and immigrants,” lamented Elizabeth Schroeder, associate director of the ACLU of Southern California.

“Maybe they (white males) are scared when they see qualified minorities and women able to get jobs and they know they have to compete on an equal footing. But affirmative action is still one of the best means we have to correct historical discrimination,” Schroeder said.

But to others, especially white males and conservatives, affirmative action - whether in government or private enterprise - seeks to cure one type of discrimination with another.

Affirmative action programs, they say, often resort to quotas masquerading as goals, use a double standard in screening for jobs and promotions, reinforce racial hostility and enhance self-doubts among minorities.

“Racial preferences punish the blameless and stigmatize their beneficiaries,” said Roger Clegg, general counsel to National Legal Center in the Public Interest. “They foster resentment among non-minorities and a victim mentality among minorities: precisely the two mindsets we don’t need if our racial wounds are ever to heal.”

For now, the spotlight is on the Supreme Court, which confronts its 10th affirmative action dispute since its 1978 Bakke ruling, which rejected racial quotas in college admissions but allowed race to be considered in pursuit of diversity of the student body.

Since the Bakke case, the court has confronted a broad variety of affirmative action programs, endorsing most of them.

But the Colorado case, conservative justices confront a case that may not be ideal for a broad counterattack on the alleged inequities of federal preferences.

“I hope this case will be a step toward a colorblind Constitution,” said conservative lawyer Bolick. “But I don’t see it as a revolutionary case, although I’d like it to be.”

The government highway construction program at issue in the case doesn’t directly require prime highway contractors to hire subcontractors owned by minorities.

But it does offers a money incentive for contractors that sign up small “disadvantaged” subcontractors. A firm is considered disadvantaged if its owners are members of a group subjected to prejudice.

At the heart of the legal dispute, however, is a provision that allows prime contractors to presume that African-Americans, Hispanics, Native Americans and other minority groups are disadvantaged.

That legal presumption may be overcome by evidence that the owners of the firm aren’t truly disadvantaged. But the record before the court, lawyers said, shows no instance in which a minority-owned firm actually was disqualified.