High Court Curbs Affirmative

Two landmark rulings roll back minority hiring and school desegregation

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.

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.

Under US government regulations, prime contractors on such roadwork can get a 1.5 percent bonus if 10 percent of their subcontracts are awarded to disadvantaged businesses. Firms owned by minorities and women, under these rules, are presumed to be disadvantaged.

To help it obtain this bonus, the prime contractor on the San Juan job, Mountain Gravel and Construction, hired a minority contractor for all its guard rail work. But Adarand Constructors, a white-owned firm, had in fact submitted a lower bid. Denied the work, Adarand and its owner, Randy Pech, sued.

Eventually, the 10th US Circuit Court of Appeals ruled against Adarand.

The Supreme Court, however, has now sent this ruling to the 10th Circuit for further study.

The Supreme Court's first reversal of federal affirmative action came in 1989, in the Richmond case, when the court ruled that states should not have a separate affirmative-action policy. Monday's ruling completely reverses a surprising 1990 decision authored by former Justice William Brennan Jr., in which preferences were given to minority buyers of broadcasting licenses in local media markets.

The important desegregation case handed down on the same day as the affirmative-action decision centered on the state of Missouri's desire to stop paying for much of Kansas City's court-ordered school desegregation program.

In essence, the high court ruled that a lower federal bench had gone beyond the bounds of its authority in ordering Kansas City to try and lure suburban students into city schools. It also held that the lower court had gone too far when it ordered pay raises for custodians and other school workers not directly involved in teaching students.

A kind of abstract "desegregative attractiveness....is so far removed from the task of eliminating the racial indentifiability of the schools" that it goes too far, Chief Justice William Rehnquist wrote for the majority.

By a 5-to-4 vote, justices ordered lower courts to restudy the case.

In other action Monday, the court:

* Rejected the appeals of 18 current and former National Football League players who say they were wrongly forced to join the $200 million settlement of an antitrust suit against the league. If the court had taken the case, it would have brought labor uncertainty to a league that is currently the only major professional sports league in North American without labor strife.

* Ruled benefits for disabled longshore workers can be reduced or canceled if they later find higher-paying work.

The court, voting 8-1 in a California case, said workers' disability benefits can be cut in such instances even if there is no improvement in their physical condition.

* Found that fault with the way civilians were appointed to a military court that reviewed the case of a US Coast Guard member convicted in Washington State of using drugs. He won a new appeal.

The justices, voting unanimously, revived James Ryder's case and gave him a new chance to urge the Coast Guard Court of Military Review to overturn his conviction.

But the Supreme Court's decision left intact Ryder's court-martial conviction, dishonorable discharge, and three-year prison sentence for possessing cocaine, LSD and marijuana.

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