Will Americans Really Turn ‘Colorblind’? : Affirmative action decision poses a daunting challenge

From the outset, the drumbeat against affirmative action seemed disproportionate to the modest efforts and even more modest results of government agencies to redress historical discrimination. Now, with a decision that deals a severe blow to most of those efforts, the U.S. Supreme Court has challenged every public and private employer, every university admissions officer and every politician--Democrat or Republican--to act in a truly colorblind manner. But the initial reaction in some segments of society to the court’s sweeping decision makes us fear that many Americans will fail to embrace that challenge and end two centuries of racially biased behavior.

One of those who did not welcome the ruling was President Clinton, who promised to lead an effort to preserve federal affirmative action programs.

Monday’s 5-4 ruling reversed past decisions that upheld federal affirmative action as “benign race-conscious decision-making.” The court held for the first time that “all racial classifications” by government agencies are “inherently suspect and presumptively invalid.” The case arose after a Colorado road builder--a white male--lost a federal construction contract to a Latino businessman. Although the bid of Adarand Constructors Inc. was lowest, Gonzales Construction Co. won the contract, benefiting from a 1987 law requiring the U.S. Transportation Department to steer at least 10% of its funds to firms owned by racial minorities or women. Adarand’s owner sued.

HISTORY IGNORED: “The Constitution protects persons, not groups,” Justice Sandra Day O’Connor wrote for the majority. “Whenever the government treats any person unequally because of his or her race, that person suffers an injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal protection.” Affirmative action is justified only to correct specific, provable cases of discrimination, not suspected discrimination by society over time, the court held.

But Justice Ruth Bader Ginsburg, in her dissenting opinion, reviewed a sorry reality--of the present, not just the past. “The persistence of racial inequality . . . and discrimination’s lingering effects . . . are evident in our workplaces, markets, and neighborhoods. Job applicants with identical resumes, qualifications, and interview styles still experience different receptions, depending on their race. White and African American consumers still encounter different deals. People of color looking for housing still face discriminatory treatment by landlords, real estate agents and mortgage lenders,” she wrote.

Nor has it been easy for individuals to pursue claims of discrimination. Federal and state equal employment agencies are overworked, underbudgeted and understaffed.

CALIFORNIA CONNECTION: Because it is binding on California’s few formal affirmative action programs, the Adarand decision should short-circuit efforts to put before the voters a state constitutional amendment ending those state programs. However, the leaders of that campaign declared on Monday that they will proceed anyway. Critics of affirmative action in Congress, including presidential hopefuls Sen. Bob Dole (R-Kan.) and Phil Gramm (R-Tex.), hailed the decision and vowed to end every federal group “preference”--except, we presume, those benefiting Kansas farmers and Texas ranchers.

And isn’t that the point? There’s no getting away from group preferences, but it’s apparently only racial minority group preferences that the high court can no longer abide. At least let’s not pretend that a restriction on affirmative action can be justified by suggesting that the playing field is now equal for all. As Justice John Paul Stevens pointed out in his dissent, when approaching the door of opportunity it does make a difference whether one encounters a “No Trespassing” sign or a welcome mat.