High Court Curbs Affirmative
Two landmark rulings roll back minority hiring and school desegregation
WASHINGTON AND BOSTON
IN the most significant ruling on affirmative action programs in 15 years, the US Supreme Court yesterday significantly tightened the standards for federal programs that give preferential treatment to minorities.Skip to next paragraph
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Federal affirmative action efforts - such as rules that give minority contractors an advantage when competing for government contracts - will now be held to the same "strict scrutiny" that state-initiated programs must undergo. That means race- and gender-based preferences will be legal only if they address identifiable past discrimination.
Similarly, the court indicated a fundamental shift in the way it views school desegregation efforts. Court-ordered school integration plans don't have to be maintained until student test scores reach national norms, the justices ruled. Instead, the achievements of minority students should be considered only insofar as they relate to past segregation.
Taken together, the rulings seem to indicate a shift to the right on some of America's most fundamental social questions. But because the votes were so close and complicated, the court's future path is not entirely clear.
"They are both conservative decisions," says Georgetown law professor Mark Tushnet. "As a general matter, the court is now poised to decide whether it will adhere to its general understanding on race and justice of the last 25 years, or whether it will depart from them."
To a certain extent, the Supreme Court is returning to the past with its affirmative action ruling. Its complex 5-to-4 decision appears to mean that the legal status of federal affirmative action is now similar to what it was in 1980, when the Supreme Court loosened federal racial, ethnic, and gender preference rules in its key Fullilove v. Klutznick decision.
The important decision also comes at a time when affirmative-action efforts are facing increasing scrutiny both from Republican leaders in Congress and from the Clinton administration. GOP leaders are urging elimination of many preference efforts. The White House defends most of them, but says changes or updating maybe be needed in some.
"This really is the other shoe dropping on affirmative action," says Mr. Tushnet. "It looks as if these programs will have to be rethought from the ground up."
Justices declined to strike down federal affirmative action programs outright. Instead, they sent a Colorado case back to federal appeals court for further study on whether such programs illegally discriminate against whites in their efforts to give minorities a boost.
"Federal racial classifications, like those of a state, must serve a compelling governmental interest and must be narrowly tailored to further that interest," Justice Sandra Day O'Connor wrote for the court.
But analysts felt that the ruling could deliver a staggering blow to many federal preference programs as they now stand. In particular, efforts which steer some $10 billion a year in government contracts to minority and female-owned firms may now have to be eliminated or completely rethought.
The case in question, known as "Adarand," involved federal contracts for highway construction in the San Juan National Forest in southern Colorado.