‘Colorblind’ Constitution Faces Test in Altered Light : Law: Conservative justices may dismantle affirmative action. Their tool is a doctrine meant to aid minorities.

For two-thirds of this century, civil rights lawyers, liberal judges and legal scholars contended the Constitution was “colorblind,” citing the ringing words of dissent from Justice John Marshall Harlan in the Plessy vs. Ferguson case of 1896.

Refusing to endorse legal segregation on Louisiana’s railroads, Harlan wrote: “Our Constitution is color blind. In respect of civil rights, all citizens are equal. The law regards man as man and takes no account of his surroundings or his color.”

In the 1950s, then-lawyer Thurgood Marshall invoked the theory of the colorblind Constitution when he made his successful attack on school segregation before the high court.

Legal distinctions “made on a racial basis or on the basis of ancestry are odious and invidious,” he told the justices in the landmark case Brown vs. Board of Education.

But since the 1970s, it has been conservative--not liberal--lawyers, judges and legal scholars who have invoked the colorblind Constitution. They have argued that minorities cannot be singled out by the law--even if the law gives them preference, as in the case of affirmative action.

This year, 99 years after Plessy vs. Ferguson, the Supreme Court may finally have a solid majority to rule that the colorblind principle is the law, regardless of who benefits.

If the conservative majority holds together, a ruling barring legal preferences based on race could affect billions of dollars in government contracts, as well as the employment prospects for millions of public employees.

Perhaps even more significant, a broad court ruling striking down federal preferences based on race could signal a retreat from the nation’s 20-year experiment with official affirmative action.

While the justices are not reconsidering affirmative action by private employers, some legal experts believe even such voluntary programs could be undermined by a strong repudiation of government efforts.

Begun quietly under Presidents Lyndon B. Johnson and Richard Nixon to remedy blatant bias and open the doors to minorities, affirmative action blossomed in the 1970s with a series of federal programs that reserved a percentage of contracts and jobs for blacks, Latinos and other minorities.

Colleges, universities and most private employers followed with a variety of programs designed to increase the number of minorities on campus or on the job.

But these programs were originally conceived as temporary measures. And their critics, bolstered by the conservative political tide, say their time is up.

“That is the major question before the court,” said Notre Dame University law professor Douglas Kmiec. “Is the Constitution in 1995 colorblind, even if society is not there yet? Is it time to say race is an irrelevant factor in government decision-making?”

The first test will come Tuesday, when the justices hear arguments on behalf of a white road-builder from Colorado, who submitted a low bid to erect guardrails along a federal highway but lost out to Gonzales Construction Co., a Latino-owned firm, because of a preference program.

“I’m not mad at minorities, but I don’t feel the government should be encouraging discrimination,” said Randy Pech, the road-builder. “This has been happening to me 15 years, and I don’t see it ending.”

But many legal experts think it could end this year because of the markedly changed makeup of the Supreme Court.

Just five years ago, the high court narrowly upheld “benign race-conscious” federal programs that benefit minorities.

That ruling prompted a strong dissent from four conservatives, who accused the majority of “welcoming the return of racial classifications to the nation’s laws.”

“At the heart of the Constitution’s guarantee of equal protection lies the simple command that the government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class,” Justice Sandra Day O’Connor said in dissent. She was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy.

In July, 1990, three weeks after the opinion upholding benign discrimination, its author, 84-year-old Justice William J. Brennan, suffered a stroke and was forced to step down. A year later, Justice Thurgood Marshall joined him in retirement. Byron R. White and Harry A. Blackmun followed after that. Now, only one justice, John Paul Stevens, is left from the majority that upheld affirmative action.

And the conservatives have been bolstered by Justice Clarence Thomas, who has publicly endorsed the colorblind principle in lawmaking.

“If there was ever an opportunity to do something, this is it,” said Ohio State University law professor Michael Rose, who filed a brief on behalf of conservative academics urging the court to outlaw official affirmative action.

Minority advocates, looking at the same changed court, are worried about the outcome.

A ruling in favor of Pech “could doom practically everything so that you couldn’t even think about race,” said Stephen Ralston, senior staff attorney for the National Assn. for the Advancement of Colored People’s Legal Defense Fund in New York.

The Washington-based Minority Business Enterprise Legal Defense Fund sent a memo to its members last month, saying that “your survival as a minority entrepreneur and the survival of our business community are at stake.”

For fiscal 1993, the U.S. Small Business Administration said, the 18 major federal departments awarded $10.5 billion, or 5.3% of the total, in contracts to firms owned by minorities or women.

Since 1978, Congress has said these agencies should steer at least 5% of their funds--and at the Transportation Department, at least 10%--to small businesses owned by minorities.

In the case before the court, Adarand Constructors vs. Federico Pena, 93-1841, lawyers for Pech are challenging the legal mechanism that steers contracts to “disadvantaged business enterprises,” which are defined as those owned by “black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans and other minorities.”

To achieve its goal, the Transportation Department awards prime contractors with a bonus of up to 10% if they in turn hire minority-owned firms.

“It works like a bribe,” said Denver attorney William Perry Pendley, who is representing Pech.

Although Pech submitted a slightly lower bid to build the guardrails along a stretch of Colorado highway, the prime contractor won the bonus by giving the work to the minority-owned firm.

In defense of the program, lawyers for the Clinton Administration say it is targeted at disadvantaged businesses and it “does not involve a fixed quota or a set-aside.”

In his brief, Solicitor General Drew S. Days III urges the court to preserve the power of Congress and federal agencies “to act in an affirmative, race-conscious manner.”

It is hard to forecast the outcome of the case, despite the clearly changed character of the court. Where the Supreme Court is concerned, four plus one does not always equal five.

“I think there is a working majority now” to bar most legal preferences based on race, said Washington attorney Carter G. Phillips. “But it’s a fragile majority.”

Most of the uncertainty revolves around O’Connor, who, unlike the other conservatives, has voted on occasion to uphold some affirmative action. She is also renowned for writing “on the one hand, on the other hand” opinions that allow both sides to claim victory.

In 1989, O’Connor wrote a 5-4 opinion that struck down a minority set-aside program in Richmond, Va., and ruled that racial discrimination by state and local governments should be judged the same, regardless of whether whites or blacks are victims. This legal standard seemed to doom most city and state programs that explicitly benefit minorities.

However, she went on to say that in extreme cases, where statistics show minorities have been excluded from construction work, cities can target funds to minority-owned firms.

Her words in the case of Richmond vs. Croson have spawned a new industry of so-called “Croson studies.” Most big cities have paid consultants to compile data showing that minority firms get only a small amount of business. With these studies in hand, most cities have maintained their efforts to steer some funding to businesses owned by minorities or women.

Still, a broad ruling in the Colorado case, perhaps written by Rehnquist, has the potential to undercut virtually all government programs that give explicit preferences to minorities.

“He’s been fighting these (programs) since he came on the court,” Phillips said of Rehnquist, a justice since 1972. “He might figure the time has come to finally do away with them.”

Later this year, the court is also expected to rule on whether states can use race to design electoral districts specifically to ensure that minorities are in the majority and whether state colleges can use scholarships reserved for minority students.

On Capitol Hill, the new Republican majority is also likely to repeal at least some programs that have benefited minorities.

“We’re talking about a broad prohibition on racial preferences in federal contracts,” said Clint Bolick, a lawyer for the Institute for Justice, a conservative group that is working on the legislative proposals.

But it is important to note that neither the court rulings nor the legislation will directly affect affirmative action by private employers.

In 1978, the high court interpreted the federal job-discrimination laws so as to allow preferences in favor of minorities and women, and the court has shown no inclination to revisit those rulings.

But the Constitution limits what the government can do, and the more conservative justices have made it clear they do not believe explicit racial distinctions are allowed.

As a dismayed Justice Kennedy wrote when the court narrowly upheld affirmative action in 1990: “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.’ ”