Strong Tool Lost in Fight Against Continual Patterns of Excluding Minorities

Affirmative action continues to torment the Supreme Court, as it has the nation. Except in the area of school desegregation, the court has yet to agree on a majority approach to the problem. It is clear, however, that the arena of debate has moved distinctly to the right.

That is the message of last month’s decision in City of Richmond vs. J. A. Croson. In 1980 the court, speaking through five separate opinions, voted 6 to 3 to uphold a congressional statute requiring that a certain percentage of federal funds for construction projects be allocated to businesses owned by minorities. But when Richmond, Va., attempted to enact a similar ordinance, setting aside 30% of city construction funds for minority businesses, the Rehnquist court, speaking through six separate opinions, found the ordinance unconstitutional on a 6-3 vote.

Richmond marks the first case of a new era. The balance of power in affirmative-action cases has moved to Justice Sandra Day O’Connor, who announced the judgment of the high court. The politics of the present court are such that O’Connor’s views are likely to prevail in future decisions involving affirmative action. For those who look to the court for an astute appreciation of the complexitiesof the issue, her opinion in the Richmond case offers grounds for hope as well as for concern.

In 1986 O’Connor and three other justices explicitly argued that affirmative-action programs could be justified only on the basis of evidence of “prior discrimination by the governmental unit involved.” This approach, if taken literally, would have automatically invalidated the Richmond ordinance, for there was no contention that the city of Richmond had itself been discriminating against minority businesses. The ordinance was instead predicated on the notion that a “tight-knit” construction industry had prevented minority contractors and subcontractors from gaining business.

It is encouraging, therefore, that O’Connor modified her previous position andheld that in appropriate circumstances a city would have the constitutional powerto use affirmative action to combat the effects of discrimination by others “within its jurisdiction.” O’Connor stressed, however, that this discrimination must be specific and identifiable, and it is on this point that she faulted the Richmond ordinance. To establish specific discrimination, as distinct from a general and amorphous “societal discrimination,” O’Connor concluded that one should not compare the percentage of the general population made up of minorities, but rather the proportion of all qualified contractors made up of qualified minority contractors. On this question the city of Richmond had neither developed any information nor offered any evidence. If a government agency does its homework, however, there is no reason in principle why it should not be able to meet O’Connor’s requirement.

There is a second ground for encouragement in O’Connor’s opinion. She could have required that affirmative-action programs be justified by evidence of actual constitutional (or statutory) violations. Such a requirement would have been hard to meet, and would have rendered such programs all but impossible to sustain. But she imposed no such obligation. All that she required a government agency to establish was evidence of a significant and relevant statistical disparity between, for example, the proportion of qualified minority contractors and the proportion of total funds received by such contractors. Such a disparity does not in itself prove illegal discrimination, but it does constitute what in law is called a prima facie case. It leaves considerable room for maneuvering for cities wanting to justify affirmative-action programs.

O’Connor’s performance in Richmond is not, however, without its troubling aspects. In one brief section of her opinion she hinted that even if a city had demonstrated the requisite statistical disparity, it still could not implement an affirmative-action plan except “in the extreme case,” when racially neutral efforts to remedy the discrimination had failed. The language is obscure and carefully hedged, but it is not difficult to imagine how in future cases it could be used to strike down any or all affirmative-action programs.

O’Connor also turned a deaf ear to what is perhaps the most problematic aspect of the Richmond case. Although the population of Richmond is 50% black, only 0.67% of the city’s prime construction contracts had been awarded to minority businesses during the five-year period preceding the enactment of the ordinance. It is likely that the root cause of the extraordinarily low percentage was the tiny number of such firms. And if this were not true in Richmond, it certainly would be in many cities throughout the nation. An affirmative-action set-aside like Richmond’s is designed to remedy this problem by creating strong incentives to attract minority participation in the construction industry. It is thus a powerful tool to overcome traditional minority under-representation. But O’Connor’s strict emphasis on narrow statistical disparities effectively disables government agencies from using affirmative-action programs to break self-perpetuating patterns of minority exclusion. Wholesale minority under-representation in specific trades or professions will often not be traceable to any specific and identifiable discrimination.

In the end, therefore, the significance of Richmond and of O’Connor’s new stewardship is that affirmative-action programs will be tolerated (more or less grudgingly) to remedy discrete areas of demonstrable racial discrimination. But they will be constitutionally prohibited from being used as instruments of social engineering to overcome the more profound racial dislocations that afflict the nation.