High Court Deals Severe Blow to Federal Affirmative Action : Rights: Justices hold that race-based preferential treatment is almost always unconstitutional. But an opening is left for narrow, specific bias remedies.

The Supreme Court dealt a potentially fatal blow to most federal affirmative action programs Monday, ruling that preferential treatment based on race is almost always unconstitutional, even when it is intended to benefit minority groups who suffered injustices in the past.

The 5-4 ruling in a Colorado case reversed past high court decisions, most recently in 1990, that applauded federal affirmative action as “benign race-conscious decision-making.”

Instead, for the first time, the high court held that “all racial classifications” by government agencies are “inherently suspect and presumptively invalid.”

The court, however, left a small window open. As a last resort, affirmative action programs can be upheld as a means to correct specific, provable cases of discrimination, the court said, but stressed that such programs cannot be broadly applied to remedy suspected discrimination by a society over time.

Its opinion directs judges to skeptically examine any program that treats people differently because of their race. It also sets a strict legal standard that will make it hard to justify any government program--federal, state or local--that explicitly reserves jobs, grants, contracts, broadcast licenses or college admissions for minorities.

“The Constitution protects persons, not groups,” wrote Justice Sandra Day O’Connor for the court. “Whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely with the language and spirit of the Constitution’s guarantee of equal protection,” she said.

In a second setback for civil rights lawyers, the court said low achievement levels among minority students are not reason enough to continue a court-ordered school desegregation plan. The ruling, in a Kansas City case, marked the third time in four years that the court has pressed judges to end long-running desegregation orders.

The Clinton Administration wound up on the losing end in both cases, having urged the court to preserve affirmative action and court-ordered desegregation.

The affirmative action case decided Monday arose when a white road builder from Colorado complained that he lost a federal contract for a guard rail repair to a Latino businessman, even though the white businessman had submitted a slightly lower bid.

The Latino businessman had benefited from a 1987 law that requires the Department of Transportation to steer at least 10% of its funds to firms owned by racial minorities or women.

A federal judge and a U.S. appeals court in Denver rejected the white contractor’s claim on the grounds that the Supreme Court had twice before upheld affirmative action programs authorized by Congress.

But the case, Adarand Constructors vs. Pena, 93-1841, arrived just as the court, Congress and the Administration were rethinking the entire concept of affirmative action. The stakes were high, too, since more than $10-billion a year in federal contracts is directed to minority-owned firms under an array of affirmative action programs.

Something else had also changed since the court last revisited the issue in 1990. Justice Thurgood Marshall, the legendary civil rights lawyer and leading liberal, had retired, and his seat was taken by Justice Clarence Thomas, a staunch conservative.

With Thomas casting the fifth and deciding vote Monday, the court reversed course and took a giant step toward wiping away preferential policies based on race. In a concurring opinion, Thomas denounced affirmative action in the strongest terms. It is a form of “racial paternalism,” he wrote, whose “unintended consequences can be as poisonous and pernicious as any other form of discrimination.”

Thomas and O’Connor were joined in the majority by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy.

The four dissenters--Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer--said affirmative action should be preserved as a “catch-up mechanism designed to cope with the lingering effects of racial subjugation.”

The majority opinion stopped short of deciding the case in favor of the white contractor. The matter was sent back to a federal judge in Denver to consider whether the Latino businessman obtained a preference because of his ethnic background or because he had shown he was “socially and economically disadvantaged.” While the court has frowned on classifications based on race, it has indicated that it would uphold a non-racial preference program directed to people who are poor or otherwise economically disadvantaged.

In addition, the ruling said nothing about employment matters in private business. In the past, the court has said a private employer may prefer minorities and women in hiring or promotions to correct “a manifest imbalance” in a work force.

The ruling also said nothing about affirmative action for women and dealt only with classifications based on race or ethnic origin.

But the scope of the ruling is unquestionably broad. The court did not focus just on government contracts or “set-aside” programs such as the one in the Adarand case. Instead, it attacked the use of race as a criterion in all government programs, whether hiring, college admissions or distributing grants.

Looking back over its history, O’Connor concluded that the Supreme Court had made its worst mistakes when it allowed the government to categorize people based on race. She cited the Plessy vs. Ferguson case of 1896, which upheld the policy of racial segregation in the South, and the case of Korematsu vs. U.S. in 1944, which upheld the World War II internment of Japanese-Americans.

“A free people whose institutions are founded upon the doctrine of equality should tolerate no retreat from the principle that government may treat people differently because of their race only for the most compelling reasons,” O’Connor wrote.

As a last resort, O’Connor said, a limited program of preferences could be justified to remedy a clear pattern of “prior discrimination” against minorities.

“The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and the government is not disqualified from acting in response to it,” she wrote.

O’Connor cited only a 1987 ruling that upheld a hiring quota for blacks in Alabama after a judge concluded that the state highway patrol had repeatedly and blatantly refused to hire nonwhites.

For the future, much depends on how judges interpret the phrase “prior discrimination.” Six years ago in Richmond vs. Croson, the high court, also in an opinion written by O’Connor, ruled that states and municipalities should not employ race as a criterion for awarding contracts or other benefits, such as scholarships, except as a remedy for past discrimination.

Lower courts have split on what that means. Some have upheld city programs that reserve contracts for minorities on the theory that statistics show only a small percentage of contracts go to businesses owned by blacks or Latinos. This suggests a pattern of discrimination. But other judges have struck down similar programs because no discrimination has been proven.

Despite Richmond vs. Croson, nearly every state university still uses affirmative action in admissions. A specific challenge on that practice has not come to the high court since then. However, a federal appeals court recently cited the Richmond ruling as a basis for striking down a scholarship program at the University of Maryland exclusively for black students.

Opponents of affirmative action called the decision a landmark, while defenders said it is not clear how the decision will play out in the lower courts.

“The era of racial preferences is coming to an end,” said Clint Bolick, an attorney for the Washington-based Institute for Justice. He predicted that the ruling would encourage congressional Republicans to wipe out affirmative action programs.

Leaders of the Anti-Defamation League also hailed the decision as a “sea change” in the law.

Rep. Charles T. Canady (R-Fla.), who plans to introduce legislation to repeal affirmative action programs, praised the decision and said it “gives impetus to congressional action to dismantle the pervasive system of race and gender preferences” established in Washington.

But lawyers for the NAACP Legal Defense Fund said affirmative action programs can survive if federal officials step forward to defend them.

* DESEGREGATION RULING: Justices oppose long-term judicial control of schools. A15

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In the Words of the Court

Excerpts from the Supreme Court ruling Monday that made federal programs designed to give special help to minorities more vulnerable to legal challenges by those who contend the programs discriminate against whites.

JUSTICES FOR

William H. Rehnquist

Sandra Day O’Connor

Anthony M. Kennedy

Clarence Thomas

Antonin Scalia

JUSTICES AGAINST

John Paul Stevens

David H. Souter

Ruth Bader Ginsburg

Stephen G. Breyer

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From Justice Sandra Day O’Connor’s majority opinion:

Any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny.

The Fifth and 14th amendments to the Constitution protect persons, not groups. It follows from that principle that all governmental action based on race ... should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.

Accordingly, we hold today that all racial classifications, imposed by whatever federal, state or local government actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.

We think it best to remand the case to the lower courts for further consideration in light of the principles we have announced.

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From Justice Antonin Scalia’s concurring opinion:

In my view, government can never have a compelling interest in discriminating on the basis of race in order to make up for past racial discrimination in the opposite direction.

Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or debtor race.

To pursue the concept of racial entitlement--even for the most admirable and benign of purposes--is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred.

In the eyes of government, we are just one race here. It is American.

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From Justice Clarence Thomas’ concurring opinion:

Government cannot make us equal; it can only recognize, respect and protect us as equal before the law.

That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution the government may not make distinctions on the basis of race.

As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged.

In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice.

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From Justice John Paul Stevens’ dissent:

Instead of deciding this case in accordance with controlling precedent, the court today delivers a disconcerting lecture about the evils of government racial classifications.

The consistency that the court espouses would disregard the difference between a “No Trespassing” sign and a welcome mat. It would treat a Dixiecrat senator’s decision to vote against Thurgood Marshall’s confirmation in order to keep African Americans off the Supreme Court as on a par with President Johnson’s evaluation of his nominee’s race as a positive factor.

An interest in consistency does not justify treating differences as though they were similarities.