Down but not out: the Court makes it tougher for affirmative action programs, but doesn't eliminate them

Black Enterprise, Sept, 1995 by Mark Lowery

The U.S. Supreme Court, in two separate cases, recently fueled the anti-affirmative action debate by attacking--but not completely dismantling--federal programs providing preferences to minorities.

Opponents of affirmative action programs lauded the two decisions as steps toward a color-blind society, while supporters feared the high court's ruling will help cripple the action President Johnson took 30 years ago.

"By taking up this case, [Adarand vs. Pena] the court reopened what was thought to be a settled issue," says Nigel Parkinson, president of the National Association of Minority Contractors. "This has contributed to the atmosphere of assault on affirmative action that has unfortunately become part of the political debate in this country."

In the school desegregation case, the less publicized of the two, the court ruled that school systems did not have to guarantee equal results for black and white students.

In Adarand, the court limited the government's ability to set aside business for minority contractors. It ruled that federally sponsored programs must be narrowly tailored to serve a compelling government interest.

Adarand, a white-owned construction company in Colorado, submitted the lowest bid on a federal highway project, but lost the project to a Latino company that submitted a higher bid. The Latino company won the bid because minority status was considered in the bidding process. Adarand argued that its right to "equal protection" had been violated and, while this argument was rejected by lower courts, the high court agreed.

But what effect will the Adarand decision have on federal affirmative action programs? "The Supreme Court has raised the hurdle, but it is not insurmountable," President Clinton said following the court's action. "Make no mistake, the court has approved affirmative action that is narrowly tailored to achieve a compelling interest. The constitutional test is now tougher than it was, but I am confident that the test can be met in many cases."

Many supporters of affirmative action say the court's rulings are not the doomsday actions the media portrays. They note that the high court did not rule that the concept of affirmative action programs was unconstitutional. "The public can rest assured that the Supreme Court has carefully crafted a set of rules that protects against quotas while at the same time permits affirmative action when it is needed to open up opportunity," says Elaine R. Jones, director-counsel of the NAACP Legal Defense & Educational Fund.

Clarence Thomas, the court's only African American justice, joined the majority of justices critical of federal affirmative action programs. "...These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or adopt an attitude that they are entitled to preferences," Thomas wrote in his opinion.

Civil rights leaders, such as the Rev. Jesse Jackson, immediately accused Thomas of turning his back on the same policies that bolstered him. "Without the laws we worked for, [Thomas] couldn't have gone to Yale, couldn't have gone to the EEOC, couldn't have gone on the Supreme Court," Jackson told USA Today.