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
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
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
"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
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
Making sure that companies doing business with the federal
government try to find and hire qualified minority employees is
perhaps the biggest of the U. …