Court OKs Affirmative Action at Federal Level

The Supreme Court, in a surprising finale to its 1989-90 term, ruled Wednesday that Congress may order the use of affirmative action in awarding federal contracts, including radio and television licenses.

On a 5-4 vote, the court said that the federal government may use a “benign racial classification” system to give preference to blacks over whites. Such a federal policy need not remedy past discrimination but rather may seek simply to give blacks and other minorities a greater share of federal benefits, the court said.

This open-ended endorsement of minority preference policies by the federal government comes just a year after an increasingly conservative Supreme Court appeared ready to ban government affirmative action.

Last year, in the case of Croson vs. Richmond, the high court said that states and local governments may not give preferences to minorities except in the rare instances in which they are making up for a history of blatant exclusion.

But, on Wednesday, a different court lineup announced that Congress may do what the states may not.

It is “within the power of Congress” to undertake “benign race-conscious measures” so as to “serve important government objectives,” Justice William J. Brennan Jr. said for the court. Brennan was joined by his three fellow liberals on civil rights issues--Thurgood Marshall, Harry A. Blackmun and John Paul Stevens--and Byron R. White, who usually votes with the conservatives.

However, White is known for regularly voting to uphold acts of Congress without regard to ideology. “He is a strong nationalist who defers to congressional power,” said Harvard law professor Laurence H. Tribe.

The ruling was based on the post-Civil War amendment to the Constitution that gave Congress the power to remedy discrimination in the South against the newly freed slaves.

The decision gave congressional Democrats and civil rights activists a major victory. For the Bush Administration, it was a surprising defeat. The decision gave a boost to Democrats who are pressing legislation to overturn a series of Supreme Court rulings last year that limited the reach of federal civil rights laws.

Legal experts said they were stunned.

“This is genuine landmark opinion that comes at exactly the right time in American history,” Tribe said. “It is crucial that Congress have the elbow room to deal with this nation’s racial problems at a time when the court has seemed no longer interested.”

The four conservative dissenters said that the talk of “racial classification” smacked of Nazi and South African discrimination. “I regret that, after a century of judicial opinions, we interpret the Constitution to do no more than move us from ‘separate but equal’ to ‘unequal but benign,’ ” Justice Anthony M. Kennedy said.

The case before the court focused on a policy used by the Federal Communications Commission to award radio and television broadcast licenses. Because less than 1% of the nation’s radio and television stations were minority-owned in 1978, the FCC said that it would consider it a “plus factor” if future license applicants were minority members.

The Ronald Reagan Administration tried to reverse this FCC policy in the early 1980s, but Congress enacted a bill freezing it in place.

With the “plus factor” in effect, Metro Broadcasting, a predominantly white Florida firm, lost a bid for a new television station in Orlando to a company owned by Latinos. Metro filed suit, challenging the FCC policy as unconstitutional.

The federal appeals court in Washington upheld this FCC policy.

When the case (Metro Broadcasting vs. FCC, 89-453) reached the Supreme Court, it appeared to give the court’s conservative majority a chance to wipe out minority preference policies throughout the federal government.

Instead, thanks to White’s vote, Brennan and his allies on the court revived a long-forgotten liberal view of the 14th Amendment.

In 1868, three years after the Civil War ended, the Reconstruction Congress approved the 14th Amendment to give itself the power to protect blacks in the Southern states. It said that no state “may deny to any person . . . the equal protection of the laws.” Its final passage said: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

In recent decades, the amendment has been understood to require that all Americans have a right to equal treatment by government at all levels: local, state and federal. Bush Administration lawyers said that the 14th Amendment required the federal government, as well as the states, to adopt colorblind policies.

But liberal lawyers replied that the amendment allows Congress to enact preferences for blacks, even if the states may not.

“The central purpose of the 14th Amendment was to give Congress the power to improve the status of blacks. That’s just what Congress was doing here,” said Georgetown law professor Louis M. Seidman, who filed a friend-of-the court brief in support of the FCC.

Equally important, according to some lawyers, the court said that a minority preference program need not be a remedy for past discrimination.

“This means you don’t have to dredge up what happened in the past, but rather say this would make things better in the future,” said New York University law professor Burt Neuborne. Based on this rationale, Congress could mandate affirmative action in a variety of areas.

“I don’t see that they have set any limit,” Charles Cooper, a Reagan Administration lawyer, said ruefully.

Justice Stevens may have set one limit. Although he joined the five-member majority, he said in a concurring statement that minority preference programs should be reserved for “extremely rare situations.”

In a 30-page dissent, Justice Sandra Day O’Connor said the Constitution demands that all persons be treated “as individuals” and that “racial classifications” are repugnant. She was joined by Chief Justice William H. Rehnquist and Justices Kennedy and Antonin Scalia.

Kennedy, in a separate dissent joined by Scalia that went even further, lambasted the court for upholding legal racial classifications. He cited both Nazi measures and South Africa’s apartheid policies and compared the ruling to the infamous Plessy vs. Ferguson case of 1896, in which the court endorsed the “separate but equal” doctrine.

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