TUESDAY, JUNE 13, 1995

Justices Strike Double Blow To Minorities Court Reverses Affirmative Action Course

The Supreme Court dealt a potentially fatal blow to most federal affirmative action programs Monday, ruling that preferential treatment based on race is almost always unconstitutional, even when it is intended to benefit minority groups who suffered injustices in the past.

The 5-4 ruling in a Colorado case reversed past decisions, most recently in 1990, that applauded federal affirmative action as “benign raceconscious decision-making.”

Instead, for the first time, the high court held that “all racial classifications” by government agencies are “inherently suspect and presumptively invalid.”

The court, however, left a small window open. As a last resort, affirmative action programs can be upheld as a means to correct specific, provable cases of discrimination, the court said, but stressed that such programs cannot be broadly applied to remedy suspected discrimination by a society over time.

Its opinion directs judges to skeptically examine any program that treats people differently because of their race. It also sets a strict legal standard that will make it hard to justify any government program - federal, state or local - that explicitly reserves jobs, grants, contracts, broadcast licenses or college admissions for minorities.

“The Constitution protects persons, not groups,” wrote Justice Sandra Day O’Connor for the court. “Whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely with the language and spirit of the Constitution’s guarantee of equal protection,” she said.

The case decided Monday arose when a white road builder from Colorado complained that he lost a federal contract for a guardrail repair to a Latino businessman, even though the white businessman had submitted a slightly lower bid.

The Latino businessman had benefited from a 1987 law that requires the Department of Transportation to steer at least 10 percent of its funds to firms owned by racial minorities or women.

A federal judge and a U.S. appeals court in Denver rejected the white contractor’s claim on the grounds that the Supreme Court had twice before upheld affirmative action programs authorized by Congress.

But the case, Adarand Constructors vs. Pena, 93-1841, arrived just as the court, Congress and the Clinton administration were rethinking the entire concept of affirmative action. The stakes were high too, since more than $10 billion a year in federal contracts is directed to minorityowned firms under an array of affirmative action programs.

Something else changed too since the court last revisited the issue in 1990. Justice Thurgood Marshall, the legendary civil rights lawyer and leading liberal, had retired, and his seat was taken by Justice Clarence Thomas, a staunch conservative.

With Thomas casting the fifth and deciding vote Monday, the court reversed course and took a giant step toward wiping away preferential policies based on race. In a concurring opinion, Thomas denounced affirmative action in the strongest terms. It is a form of “racial paternalism,” he wrote, whose “unintended consequences can be as poisonous and pernicious as any other form of discrimination.”

The four dissenters - Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen Breyer - said affirmative action should be preserved as a “catch-up mechanism designed to cope with the lingering effects of racial subjugation.”

Significantly, Monday’s ruling said nothing about employment matters in private business. In past rulings, the court has said private employers may prefer minorities and women in hiring or promotions to correct “a manifest imbalance” in their workforce.

And the ruling Monday said nothing about affirmative action for women and dealt only with classifications based on race or ethnic origin.

“A free people whose institutions are founded upon the doctrine of equality should tolerate no retreat from the principle that government may treat people differently because of their race only for the most compelling reasons,” O’Connor wrote.

What is a “compelling reason” that would justify a racial preference program?

It is not American history in general or “societal discrimination,” O’Connor said. That is “too amorphous a basis for imposing a racially classified remedy,” she said.

As a last resort, O’Connor said a limited program of preferences could be justified to remedy a clear pattern of “prior discrimination” against minorities.

“The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and the government is not disqualified from acting in response to it,” she wrote.


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