Bias Toward Confusion

For more than a decade the U.S. Supreme Court has struggled to enunciate a clear standard for deciding when affirmative action may be imposed to compensate for racial discrimination. In a zigzag series of decisions the court has upheld race-based preferences in hiring but not in layoffs, spawned treatises on the differences between quotas (bad) and goals (good), and filed so many splintered opinions that there seemed to be no consensus among the justices. Lawyers and judges were understandably baffled about the state of the law.

Now, in voiding a Richmond, Va., plan that guaranteed black and other minority subcontractors 30% of that city’s construction contracts, the court has struck a blow against affirmative action and created more confusion in the process. Although the vote against the Richmond “set-aside” plan was 6 to 3, only two other justices fully supported the chief opinion by Justice Sandra Day O’Connor; three others, nominally in the majority, pointedly dissociated themselves from parts of her opinion. A casual reader of the opinion, Richmond vs. Croson, would need graph paper and plenty of patience to keep track of who supported what.

O’Connor, for example, commanded five votes for the proposition that “the sorry history of both private and public discrimination in this country cannot justify a rigid racial quota” like Richmond’s. Instead, these five said, a city could impose affirmative action in its construction contracts only if there is a “strong basis in evidence” that blacks or other minorities were purposely excluded from doing business with the city.

What constitutes “strong basis in evidence?”Ah, that’s where Richmond vs. Croson falls apart. Five justices agreed that mere statistical underrepresentation isn’t sufficient, even though minority-owned businesses managed to land less than 1% of the $124 million in construction contracts that were signed by the city of Richmond over a five-year period. And repeated findings by the Richmond City Council, the U.S. Labor Department and the U.S. Congress of discrimination against blacks in the construction business would not suffice, the same five justices decreed. O’Connor, losing her majority, mustered only three other votes for her suggestion that some “narrowly tailored racial preference” might be justified if white contractors had systematically excluded minority businesses from subcontracting opportunities. Only two other justices went along with her idea that affirmative action might be in order if the city had become a passive participant in the construction industry’s discrimination.

O’Connor’s difficulties in defining just what is needed to justify affirmative action, short of a “blacks-need-not-apply” sign, stem from the fact that two of her colleagues, Justices Antonin Scalia and Anthony M. Kennedy, actually oppose nearly all forms of affirmative action. Scalia admits this, in a concurring opinion extolling the ideal of a racially neutral society; a purist, he would offer relief only to individuals who could prove that they had personally suffered injustices. Kennedy, though sympathetic to Scalia, declines to go that far because it would mean reversing most of the court’s previous forays into affirmative action. And the court, though putting racial preferences to remedy discrimination in the same suspect category as laws that blatantly discriminate on the basis of race, does so without overturning any of its own prior holdings--a truly baffling turn of events.

In the states and hundreds of cities that have adopted “set-aside” programs like Richmond’s, the court’s latest pronouncement is likely to engender considerable confusion. O’Connor’s opinion offers almost no guidance about what kind of discrimination warrants affirmative action. It seems to require--one can’t be sure--self-criticism and fault-finding that most city councils and legislatures would find politically unpalatable and practically unattainable. How likely is it that lawmakers will admit that they or the contractors whom they hired discriminated against minority-run businesses, particularly if it might make them vulnerable to civil-rights suits? And how are they to document why a contractor favored one subcontractor over another? Somewhere in Richmond vs. Croson, the court may have articulated a new affirmative-action rule--but an impossible one.