Supreme Court may limit Congress' affirmative action efforts

September 27, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Supreme Court put Congress on clear notice yesterday that the justices may vote to outlaw many federal programs that award benefits on the basis of race and sex.

In its most significant action in four years on the still-roiling controversy over "affirmative action," the court voted to consider a plea that Congress should have no more power than state or local governments to make race, sex or ethnic background a "plus" in access to federal programs.

More than five years ago, the court said that states, counties and cities could adopt affirmative action plans only as a last resort, and only as a cure for actual past bias in the award of benefits.

Now, the justices will ponder putting the same limits on Congress, raising a potential threat to an array of federal activities ranging from construction projects to broadcasting licensing.

The court put itself back in the center of the affirmative action debate on the first day of action since returning from summer recess.

In another order involving race and public programs, the court agreed to decide whether a public school system that once was racially segregated must prove that it actually has raised the quality of students' work and test scores before it can be ruled to be an integrated system.

Both of the new orders highlighted the emerging role of the court as a skeptic about race as a deciding factor in official policies. The court soon is expected to take on cases testing the constitutionality of drawing new congressional districts to assure that black or other minority candidates win -- an area in which it already has voiced strong doubts.

While the court in 1989 had put restrictions on state and local governments' use of affirmative action, it had continued to allow Congress more leeway. In 1990, in its last ruling on the subject, the court upheld the award of broadcast licenses partly on the basis of the race of station owners.

That ruling, however, split the court 5-4, and only one of the five justices in the majority is still on the court: John Paul Stevens. All four dissenters remain, though. Moreover, a fifth justice, Clarence Thomas, wrote a major ruling as a lower-court judge striking down broadcast license preferences for stations owned by women.

The new case the justices will review involves a federal highway program that gives contractors an incentive payment if they use subcontracting firms owned by minorities or women.

That program is being challenged by a Denver contracting firm that bid lowest on a highway guardrail project, but lost out to a minority owned firm.

The school desegregation case the justices voted to consider involves what may be the most expensive desegregation plan in the country: the $1.3 billion "quality education" plan ordered by a federal court for public schools in Kansas City, Mo.

At issue in the new appeal is a lower-court order that said the public schools had not gone far enough to upgrade the quality of students in integrated schools. It said student performance must be raised before the school can satisfy its desegregation duty.

Among the other new cases the court voted yesterday to hear are a test of state power to forbid lawyers to use the mail to solicit legal business from victims of accident or disaster until at least 30 days after the incident; and a challenge to state power to treat all needy children who live with an aunt, uncle, or grandparent as one welfare family and thus entitled to only one assistance payment a month.

In addition, the court said it will review states' attempts to keep inmates in prison by lengthening the time between their parole reviews, and a case that tests the U.S. labor secretary's power to use the courts to enforce rulings on disability benefits for dockworkers.

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