Ruling Will Hurt U.S. Anti-Bias Programs, Report Says

A Justice Department analysis of the recent Supreme Court ruling on affirmative action concludes that the government will have a hard time defending its many programs that steer contracts to racial and ethnic minorities.

Officials must “have some particularized evidence” of prior discrimination against these groups in particular industries, said Assistant Atty. Gen. Walter Dellinger in a report distributed to top government lawyers. Officials may not “simply assert that because there has been general societal discrimination in this country,” affirmative action is needed to remedy it, the report said.

Since the early 1970s, most federal agencies have undertaken affirmative action programs, both in employment and in awarding contracts. Typically, these “race-conscious” efforts have been justified as a response to this nation’s history of discrimination against African Americans and because statistics show that minorities often do not get a proportionate share of jobs or contracts.

But the Justice Department analysis concludes that statistics and “general assertions” of past discrimination will not satisfy the new legal standard set by the Supreme Court. A 5-4 high court decision earlier this month said that “all racial classifications” by government agencies are “inherently suspect and presumptively invalid.” The court said such programs cannot be broadly applied to remedy suspected discrimination over time, but could be used as a means to correct specific, provable cases of discrimination.

The 37-page Justice Department analysis was delivered to the White House on Wednesday morning, and later was sent as “preliminary legal guidance” to 48 high-ranking attorneys at departments and agencies throughout the government.

When affirmative action became a topic of political controversy, especially in California, President Clinton ordered a White House review of many of the affected government programs and the justification behind them. That review is still under way.

The high court ruling in the case of Adarand vs. Pena was generally seen as dealing a setback to most official programs that use race as a basis for distributing jobs or benefits.

Dellinger, a highly respected Duke University law professor who heads the Office of Legal Counsel in the Justice Department, was asked to analyze the ruling and spell out its implications for attorneys throughout the government.

While his report comes to no final conclusion, it makes clear that the Administration will have difficulty in defending in court benefit programs that include “racial and ethnic classifications.”

Justice Sandra Day O’Connor, in her majority opinion, did not use the phrase “affirmative action,” but instead set standards for when the federal government can employ “racial classifications” in awarding contracts or jobs.

O’Connor urged the government to try “race-neutral means to increase minority business participation in government contracting.” But if such efforts fail, she said, the government could then have a “compelling reason” to try a “race-based remedy.”

On Capitol Hill, meanwhile, House Republicans continued to lay plans for legislation that would roll back affirmative action programs that use racial or gender preferences. Leaders of that effort stoutly denied recent reports suggesting they are backing off their promises to overhaul affirmative action this year in hopes of capturing greater numbers of black voters in the next election.

Tony Blankley, spokesman for House Speaker Newt Gingrich (R-Ga.), said Wednesday that affirmative action is “on the front burner.”

Rep. Charles T. Canady (R-Fla.), author of the legislation that Gingrich has identified as “the starting point” for House efforts, said Wednesday while House leaders are still devising the timetable for consideration of his legislation, “I believe they’re serious about the issue.”

Canady’s bill would call a virtual halt to federal programs that “set aside” slots and pools of funding for businesses owned by minorities and women, and would require substantial changes in other programs.

Times staff writer Melissa Healy contributed to this story.