Justices Limiting Affirmative Action : Reagan’s Legacy: Court Curbs on Anti-Bias Laws

Three days after Ronald Reagan left office, his lasting impact on the Supreme Court became clear.

On Jan. 23, the court’s five conservative justices declared that, from now on, government programs that give preferences to blacks and other minorities will be judged just as strictly as programs that favor whites.

That declaration, combined with two recent decisions revising federal anti-discrimination laws, rewrites the rules for affirmative action that have been developed over decades to promote minority opportunity in businesses, schools and government nationwide.

Where for years the high court upheld, and in some instances encouraged, programs that gave an edge to blacks and other minorities in jobs, enrollments or contracts, now the firmly conservative majority has abruptly reversed the trend.

The result, legal experts say, is that the nation’s 25-year experiment with affirmative action appears to be slipping away.

“It’s obvious the court has crippled civil rights litigation in general and affirmative action in particular,” Steven Shapiro of the American Civil Liberties Union said. “This is not the end of affirmative action, but it will now be much more difficult to maintain.”

In the January ruling, the court struck down as unconstitutional local and state government programs that reserve a percentage of public contracts for black entrepreneurs. Last week, the court made it harder for civil rights lawyers to use statistics to prove that their clients had suffered discrimination and easier for employers to rebut such charges. This week, it opened the door for white men to attack court-approved plans that benefit blacks.

As it stands now, businesses and public agencies may still take steps to improve or increase opportunities for minorities and women. And civil rights lawyers may still challenge policies designed specifically to exclude those groups.

However, public agencies may no longer set quotas or specific preferences for such groups as blacks, Latinos or women--which previously had been allowed in some cases to remedy discrimination. Private businesses will be under less pressure to hire or promote minority members. And civil rights plaintiffs will face difficulty in challenging employment policies that have the effect, even if unintentional, of discriminating against minorities.

Such a shift fulfills one of Reagan’s top priorities in appointing three conservatives to the high court.

“I do not believe that you can remedy discrimination by discriminating,” he said in 1984. The use of quotas based on race, sex or ethnic origin violates this nation’s historic ideal of equal opportunity for every person, he said.

Throughout his eight years in the White House, however, the Supreme Court by a slim margin had adhered to a different view. It was a view first put forth by President Lyndon B. Johnson in 1965.

In a nation with a long history of institutionalized repression of blacks, it is not enough for the government just to stop discriminating against blacks, Johnson said. Rather, the government must seek “equality as a fact and as a result.”

To reach that stage of equality requires, Johnson said, “affirmative action” by the government that gives blacks an edge in educational opportunities, jobs and public contracts.

From 1964, when Congress enacted the landmark Civil Rights Act, until 1987, when Justice Lewis F. Powell Jr. retired, a majority of the Supreme Court could usually be counted on to support at least the concept of affirmative action.

Still, the justices never seemed entirely comfortable with the idea of what the liberal jurists called “race-conscious” programs.

In 1978, for example, Powell said that the University of California, Davis, could not use a minority admissions quota to deny enrollment to Allan Bakke, a highly qualified white applicant, in its new medical school. However, in the same opinion, Powell endorsed the idea of a university’s seeking out minority applicants and using their race or ethnic background as a factor in their favor.

In a variety of cases in the next decade, the high court upheld affirmative action plans that were “voluntary” efforts to open doors for minorities. It also accepted, in certain cases involving a history of blatant racial exclusion, court-ordered quotas to provide remedies.

Citing Congress’ responsibility for addressing the nation’s pattern of racial discrimination, the court upheld a 1978 law that reserved 10% of public works projects for minority firms.

But a new skepticism about such preferences emerged last year after Reagan’s third appointee, Justice Anthony M. Kennedy, joined the high court.

Now, the conservative majority has shown itself willing to side with whites who say that affirmative action is really reverse discrimination.

In overruling Richmond, Va.’s, plan for allocating 30% of its contracts to minority firms, the court said that using race as the sole factor in such government decisions violates the Constitution’s ban on discrimination against “any person”--black or white.

In a case involving a court-approved plan for promoting blacks in the Birmingham, Ala., fire department, the court said that protesting white firefighters now deserved their “day in court” to challenge the plan, even though they had refused to participate in the matter eight years ago when it was being resolved. Such court-approved settlements between local governments and civil rights plaintiffs had previously been considered final.

In its decision last week on a case involving Alaska cannery workers, the court said that employers may not be held liable for illegal discrimination simply because minorities are concentrated in low-paying jobs.

In the past, many employers undertook affirmative action programs to avoid being sued for having created a work force that relegated minorities to less-skilled, lower-paying positions. They did so in fear of adverse court judgments over hiring policies that even unintentionally had that segregating effect.

“They have removed the primary incentives for employers to undertake affirmative action,” said Brad Seligman, an attorney in Oakland, Calif., who represents plaintiffs in job discrimination suits.

Although the pendulum has clearly swung to the right, some lawyers caution that the impact of the recent rulings can be exaggerated.

The court has not banned all racial preferences, even by public agencies, which were the focus of the justices’ January ruling. In one part of that opinion about Richmond’s minority contracts, the justices made clear that such preferences are to be the great exception--much more so than in the past. But they noted that, in “extreme cases” of thoroughly documented discrimination, government agencies may adopt “narrowly tailored” remedial programs that give an edge to minorities.

Moreover, most private employers were largely untouched by the recent decisions, which focused on government agencies and businesses under court-ordered plans.

Until or unless the court rules otherwise in new cases, most employers may continue to seek out, recruit and promote minorities or women, without interference.

Many business lawyers said the decisions have not eroded the civil rights plaintiffs’ ability to attack deliberate discrimination when it has been proven to exist, citing the lack of proof of intentional discrimination in the cannery case.

Not surprisingly, civil rights lawyers disagree sharply.

“They are turning it (civil rights legislation) into the White Man’s Protection Act,” said Eric Schnapper, a lawyer for the NAACP Legal Defense Fund in New York.

Noting that, on the day the court ruled on the Birmingham case, it also refused to allow women plaintiffs to contest a seniority system that protected white males because a timely challenge had not been filed, Schnapper said, “I would have thought the court would be embarrassed to hand down these two rulings on the same day. What it means is that Congress is going to have to readopt the Civil Rights Act.”

Congress cannot reverse the January ruling on minority contracts because it was based on the Constitution. However, the other recent decisions are based on interpretations of federal law and, therefore, could be overturned by Congress.

“We will be putting together a civil rights coalition that will mobilize a counteroffensive in Congress,” said Rep. Augustus F. Hawkins (D-Los Angeles), chairman of the House Education and Labor Committee. “I think within a month you’ll see a clear legislative package emerging. But it could take two years before you see final action.”

Staff writer Josh Getlin contributed to this story.