A Blow to Affirmative Action

By Andrea Sachs

Ronald Reagan never made any secret of his distaste for affirmative action -- the attempt to remedy past discrimination by giving preferential treatment to minorities. Last week, only days after Reagan left office, his goal of reining in such programs got a major boost from the Supreme Court. By a 6-to-3 vote, the court struck down a Richmond ordinance intended to guarantee blacks and other minorities a greater share of the city's construction contracts. The decision not only threatened similar programs in 36 states but also potentially opened the door to legal attacks against other racially based government schemes.

The Richmond case began in 1983, when the black-dominated city council approved an ordinance setting aside 30% of the dollar amount of its municipal projects for minority-owned construction firms. The council found that although Richmond's population was half black, less than 1% of all public- works contracts had gone to minority firms. But Justice Sandra Day O'Connor, writing for the majority, charged that the city had not specifically proved a level of past discrimination that would support its 30% set-aside rule. Wrote O'Connor: "An amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota." Although the Richmond law was intended to help minorities, she argued, quota systems are inherently dangerous.

A key component of the court's ruling was the requirement that all government distinctions based on race be subject to "strict scrutiny." This means that public-sector affirmative-action programs are valid only if they serve the "compelling state interest" of redressing "identified discrimination." Justice Thurgood Marshall, in a bitter dissent joined by Justices William Brennan and Harry Blackmun, called the decision "a deliberate and giant step backward in this court's affirmative-action jurisprudence."

Legal experts see trouble ahead for set-aside plans and other government- sponsored racial remedies. "It's clear that affirmative-action programs will be harder to justify," concludes Professor Laurence Tribe of Harvard Law School. Officials around the country expressed concern over how their plans would fare under the ruling. The National League of Cities found the decision "troubling in what it says about the capacity of states and cities to govern at all in some matters."

Some experts took a political view of the ruling. Professor Charles Abernathy of Georgetown University Law Center attributes the court's decision to the fear that as blacks take power in cities such as Richmond, laws will be passed to benefit blacks over whites. Observes Abernathy: "The court is saying that it won't stand for black leaders using power to reward their friends at the expense of others."

Despite the new limitations, the death knell has not yet sounded for affirmative action. Last week's decision did not affect plans by private companies to increase minority hiring, nor did it nullify the Federal Government's set-aside program. Some experts, moreover, feel that local governments may be able to document past inequities in a way that would satisfy the court. Says Parren Mitchell, chairman of the Minority Business Enterprise Legal Defense Fund: "The evidence of discrimination necessary to justify affirmative action on behalf of minority businesses exists."

Another way to salvage set-aside programs might be to use flexible targets rather than quotas. Minority-owned firms in Atlanta, for example, have won $300 million worth of business since 1974, when the city set a minority "goal" that now stands at 35%. Mayor Andrew Young optimistically predicts that "this ruling will not affect minority participation." That remains to ! be seen, however, as the expected flood of challenges by white plaintiffs works its way through the courts.

With reporting by Jerome Cramer/Washington