Court in the middle - Supreme Court decision on Richmond, Virginia, set asides for minority construction firms

National Review, Feb 24, 1989

WE SUPPOSE THAT we ought to show more enthusiasm for the Supreme Court's recent decision striking down a Richmond, Virginia, ordinance that "set aside" 30 per cent of all city construction contracts for firms meeting certain minority standards. After all, there were Thurgood Marshall and William Brennan in dissent calling the ruling a "giant step backward," Harry Blackmun handwringing that "I never thought that I would live to see the day . . ." and the irrepressible Ben Hooks lamenting this "grievous blow to the struggle of blacks to gain a fair share of the American dream." We suppose, if nothing else, that we ought to be enlisting in the various spin-control efforts to translate yet another indecipherable Supreme Court opinion in a way that suits our interests.

Yet we will pass for the moment. In truth, we see the Croson case as merely a minor skirmish in the longer-term battle for the soul of America. While it is a skirmish in which the liberals' losses probably outweighed ours (the Court did acknowledge that the Fourteenth Amendment protects even white males), the momentum continues in the wrong direction. In the same way that a pundit (accurately) described an earlier "landmark" affirmative-action case, Bakke, as standing finally only for the proposition that "Bakke gets to go to medical school," the only clear result in the Richmond case is that Ordinance No. 83-69-59 is invalid. That is nice but unmomentous.

The essential problem is that the Court continues to search for an imagined middle ground between explicit racial quotas and color-blind public policy. There is no such mean: either race is a relevant factor in structuring society or it is not. If it is-but, as the Court suggests, only sometimes-then any moral foundation to the constitutional idea of "equal protection" is lost and the Court will forever be evaluating racial quotas on an ad-hoc basis.

Richmond's problem was that it got sloppy and barely bothered to justify its racial quota in even the most summary terms. (We would have relished learning the extent of past discrimination in the Capital of the Confederacy against Aleutian-Americans, one beneficiary group.) What the Croson decision said is that, while the existence of past discrimination not only in the public sector but in the private sector as well can suffice to justify quotas, Richmond had neither undertaken the effort to lay Gut evidence of such discrimination nor demonstrated that its quota was a welltailored response.

Indeed, what may well be the ultimate legacy of Croson-the proposition for which it will be studied by twenty-first-century law students-is the idea that private discrimination can serve as a predicate for state "remedial" action through quotas. How difficult will it be for communities to identify instances of such discrimination? Even more alarming, such discrimination apparently can continue to be evidenced by mere statistical disparities (i.e., proportionately fewer minorities in a workforce than in the population) rather than only by a showing of genuine discrimination (i.e., treating minorities differently on account of their skin color).

Further, Croson goes out of its way to reinforce the Court's earlier decision that racial "set-asides" are valid if undertaken by the Federal Government. It also essentially intimates that state and local governments can achieve similar ends if,in addition to incanting a bit about private-sector discrimination, they also essentially camouflage color-conscious intentions as policies directed toward "disadvantaged" individuals.

We will postpone our own celebrations until Justice Scalia's opinion-allying him with Justice Harlan's famous statement that "our Constitution is color-blind and neither knows nor tolerates classes among citizens"-becomes the opinion of the Court. Until that time, the Court will continue with its chaotic succession of affirmative-action opinions. The Croson "victory" will soon be forgotten unless the opportunities likely to be offered to President Bush to refashion the Court are fully exploited. As a lawyer for a leading civil-rights organization put it, Croson is "a decision that everyone can live with." Regrettably, that is true.