The Judicial Irony of the `Set-Asides' Case

HOW ironic of the Supreme Court: In the recent decision to rule unconstitutional the Richmond ``set-asides'' program for minority contractors, the court used the same arguments it once employed to protect racial minorities. Writing for the court, Associate Justice Sandra Day O'Connor stated that the Richmond program (duplicated in 36 other states) would not stand unless the city could show it made a racial classification because of a ``compelling state interest.''

Generally, the court has used two different standards to determine whether a law has deprived either an individual citizen or a particular group of citizens of the equal protection of the law, as stated in the 14th Amendment.

The older of these, the ``rational-basis test,'' holds that if the state can show that a specific law classifying citizens according to, say, their gender or age furthers a ``legitimate'' governmental interest, then the court presumes the law to be constitutional. Military conscription, for example, may be reserved only for young men of a particular age group, hence discriminating against women and some men who are both too young and too old. Or a requirement for bus drivers may be that they pass an eyesight test, thus eliminating some handicapped citizens from that occupation.

The second standard is the more rigid, more difficult ``strict-scrutiny test,'' which has grown to apply specifically to racial discrimination, primarily against blacks. Here the burden of proof is placed on the state to show a ``compelling,'' rather than a legitimate, governmental interest. In her opinion, Justice O'Connor stated that for the Richmond law to be constitutional, the city would have to demonstrate specific, not generalized, instances of racial discrimination in the city's construction industry.

The court began to develop the ``strict-scrutiny test'' over 50 years ago when Justice Harlan Fiske Stone suggested in a footnote in an otherwise obscure case that ``prejudices against discreet and insular minorities may be a special condition ... which may call for a correspondingly more searching judicial inquiry.'' Although he did not use the term strict scrutiny, Justice Stone's meaning was clear: The court would subject racial discrimination to a standard higher than the rational-basis test.

For the court, race became a ``suspect'' category, triggering the strict-scrutiny test. As Justice Hugo Black wrote in 1944 in a Japanese internment case, ``all legal restrictions which curtail the civil rights of a single racial group are immediately suspect ... [and the] courts must subject them to more rigid scrutiny.''

Ironically, Mrs. O'Connor now argues that ``the purpose of strict scrutiny is to `smoke out' illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool.'' This was certainly true when the goal was to protect blacks, not only from the remnants of Jim Crow laws, but newer forms of suspect legislation.

As Justice Potter Stewart wrote in 1979, ``race is the paradigm. A racial classification, regardless of the purported motivation, is presumptively invalid and can be upheld only upon extraordinary justification.''

The irony is that now the court has gone further than it ever has before in using the strict-scrutiny test, once designed to protect minorities, to rule that states may not reserve public contracts for minority contractors unless ``the city could show that it had essentially become a `passive participant' in a system of racial exclusion practiced by elements of the local construction industry.''

Three years ago, the court held that a Michigan school district could not continue a plan to lay off white schoolteachers ahead of blacks in order to preserve the gains made in minority hiring. But at that time, the court did not require a showing of specific instances of discrimination.

Now it has. Such a decision flies in the face of 50 years of progress the court has made in civil rights and should make us all wonder about the Supreme Court's commitment to continued progress in that arena.

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