Analysis: Examining Affirmative Action's New Playing Field

Article excerpt

"Because our decision alters the playing field in some important respects, we think it best to remand the case to the lower courts for further consideration in light of the principles we have announced." Justice O'Connor's quiet conclusion in Adarand v. Pena is the finishing touch to the high drama of the Supreme Court's latest attempt to establish rules in the complex and controversial area of affirmative action. On this altered playing field will be tested the constitutionality of all federal programs that employ racial classifications.

The Adarand decision coupled with a 1989 case, City of Richmond v. Croson, have the potential to eliminate most government affirmative action programs. But no decision is irreversible and no policy outcome is inevitable, particularly in this area. The Court's ruling is significant, but not necessarily decisive.

Like so many landmark constitutional rulings, the Adarand case began with a small dispute, at least in the scale of government contracting. In a contract to build a highway in a national forest in Colorado, the successful prime contractor turned down a low bid from Adarand for the guard rail subcontract because the rules provide the prime within this instance a bonus of about $10,000 for using a Disadvantaged Business Enterprise. Firms owned by members of minority groups were considered presumptively disadvantaged.

When the case came to the Supreme Court, the justices had several options ranging from cautious to dramatic. It was evident that at least four justices wanted to rule in this area, or the appeal of the Tenth Circuit's ruling upholding the federal program would not have been accepted. But issues are often more complex after they are further illuminated by full briefs and oral argument. There was initially some question about whether Adarand had standing to sue, since he wanted not only damages for his lost contract, but an injunction against the use of racial classifications in future contracts that might affect him.

The Court held, following its earlier decision in General Contractors v. Jacksonville (1993), that if a racial classification prevents a person from competing on an equal footing, the person does not have to prove he or she would have won the competition to have standing to challenge the classification. No one dissented on that point.

Justices Thomas and Scalia would have turned Adarand into a vehicle for striking down the use of racial classifications in all circumstances where they were not remedies for victims of particular discrimination. But Justice O'Connor, perhaps because she was working only with a five judge majority, or more likely mindful of the historic significance of this case and the constitutional role of the Court, took a moderate approach. After all, Adarand was challenging decisions made by several Congresses and Presidents, two major Supreme Court precedents, Fullilove v. Klutznick (1980) and Metro Broadcasting, Inc. v. F.C.C. (1990), as well as several lower court decisions following those precedents. Rarely in our nation's history has a Supreme Court majority challenged such a formidable array of other actors on an issue.

Justice O'Connor, who also wrote the Croson decision, approached this task by returning the court to what she regarded as constitutional first principles. She conceded the adverse precedents, but argued they were wrongly decided and that to follow them would only compound the error and damage. She recounted the several times that the federal government has succumbed to the use of racial classifications--supporting segregated schooling and Japanese-American internment during World War II--and recalled the calamitous consequences of those acts.

To avoid these errors in the future, the constitutional principle should be that rights belong to individuals not groups. While the dissenters did not clearly disagree with that principle, they did disagree with the three standards the majority announced to implement the principle--skepticism, consistency, and congruence. …