Don't Count Affirmative Action out Yet despite Court Decision, Many Activists Believe Race-Based Preferences Still Have a Future

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FAR FROM SIGNALING an end to affirmative action, a Supreme Court ruling last week threw the issue back into the political arena, as those on both sides scrambled to adjust to the suddenly altered tenor of the debate.

While the federal government may still use race as the basis for bestowing some of its benefits, it now can do so only for a "compelling" reason and in a way that is "narrowly tailored," the court said.

That's the toughest legal standard to meet, but not an impossible one, say backers of affirmative action.

"The Supreme Court has given us all a homework assignment . . . an arduous homework assignment," says Christopher Edley, a Harvard professor who is heading President Bill Clinton's review of the government's affirmative action programs.

That "homework" will be to find out whether minority preferences are justified by a past history of discrimination. The justices ruled Monday in a case from Colorado that lower courts needed to take another look at a bonus the U.S. Transportation Department awarded to contractors who subcontracted with minority firms. The court said such bonuses - and other government-imposed racial favoritism - needed to withstand "strict scrutiny" to pass constitutional muster.

Eduardo Pena, of the League of United Latin American Citizens, said the 5-4 ruling was "not a great turning point." He recalled the reaction to the court's decision in 1978 to admit Allan Bakke to medical school and outlaw racial quotas.

"People thought Bakke was the end of affirmative action," Pena said, but they were wrong. In that case, the court said race could continue to be a factor in admissions, so long as it wasn't the deciding one.

"Race-based preferences are still possible" despite last week's decision, Pena said. He called for a renewed emphasis on other affirmative action programs and the enforcement of anti-discrimination laws.

In Congress, those who want to end programs and policies that give a nod to minorities and women took heart from the court's ruling while acknowledging that it was not a fatal blow.

"The Supreme Court has taken a great step in the right direction," said Rep. Charles Canady, R-Fla., who has proposed a ban on all preferences. "It does not go all the way."

At a forum last week on affirmative action, Pena challenged Canady to say what should be done to counter the discrimination that still exists. "The burden ought to be on you," he said. "What are you going to put in its place?"

Canady replied that vigorous enforcement of anti-discrimination laws is the answer.

Such laws have been on the books or in presidential orders for many years, beginning with a 1941 executive order by Franklin D. Roosevelt that prohibited discrimination by the government. But nearly two decades later, a presidential commission headed by then-Vice President Richard M. Nixon concluded that banning overt discrimination wasn't enough.

"The indifference of employers to establishing a positive policy of nondiscrimination hinders qualified applicants and employees from being hired and promoted on the basis of equality," the commission reported to President Dwight D. Eisenhower.

Executive orders by Presidents John F. Kennedy and Lyndon B. Johnson then established the basis for many of the federal affirmative action policies that are now in play.

***** Employment Is Focus

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