Answer in the affirmative

Entrepreneur, July, 1997 by Janean Chun

Attempting to walk a balance beam between its promises to minority contractors and its obligations to the Supreme Court, the Clinton administration recently announced its plan for handling the very big, very sticky issue of federal affirmative action programs. The ambitious approach involves an industry-by-industry review, spanning nearly 80 industries, to determine which areas still need affirmative action to level the playing field and which sectors could do without it.

The plan, which will affect the awarding of federal contracts worth approximately $200 billion annually, responds to two forces: the Supreme Court's 1995 decision in the now-infamous Adarand case and the president's commitment that affirmative action should be amended rather than ended. "We've done a fair amount of study and believe that affirmative action is still warranted, but that's just the first part of the analysis," says a Justice Department official. "The second step is to try to target affirmative action to those places where it's needed."

While the Small Business Administration's (SBA) 8(a) set-aside program for socially and economically disadvantaged firms is a separate program from the one the Justice Department is studying, it is expected to be directly affected by the findings. The plan is set up to provide benchmarks for the SBA administrator, who can then consider how to limit the use of 8(a) in certain industries.

"We have to fix these problems," says the official. "But strict scrutiny is not easy. That's the Adarand standard - it's a much tougher standard, and it requires the government to jump through more hoops if it wants to have affirmation action. But this administration remains committed to preserving affirmative action where it's appropriate to do so, as opposed to abolishing it outright."

Not all share this optimism for a more level playing field. "The Clinton administration's alleged reforms are strictly window dressing. I see this as much ado about virtually nothing," says Michael A. Carvin, a partner with Washington, DC-based law firm Cooper & Carvin PLLC and a former deputy assistant attorney general for civil rights. "As far as I can tell, the only thing this [plan] does is tie the goals to particular industries, but it doesn't in any way eliminate the preferences that are still there. This doesn't even address the problem, much less solve it. It's much more of a political exercise than one calculated to reform the programs in any real-world way. It gives the illusion of change without any actual change."

Meanwhile, other analysts applaud the effort. "It makes constitutional and policy sense to move in this direction," says Christopher Edley Jr., a civil rights specialist at Harvard University Law School in Boston. "No one can predict how serious the impact will be until all the analysis is complete, but this is a good-faith effort. It's based on principal, not politics."

Edley's concern is not so much with the review itself as with the aftereffects once the rule is finalized late this fall. "The simple fact that somebody within the system is getting opportunities doesn't necessarily mean the effects of discrimination have been eliminated, even for that individual," says Edley. "The danger is that the program may be eliminated in a particular sector, only to have the door slammed shut and the old-boy networks regain control of the process. Old habits die hard, and the goal here is not to pretend that problems have been solved when they haven't."