Affirmative Action Hobbled

June 13, 1995

The Supreme Court yesterday dealt what may be a fatal blow to affirmative action by the federal government.

It did so by re-interpreting a 1980 decision of the court and explicitly over-ruling a 1990 decision. Conservative justices -- as the five members of the majority all are -- usually accept precedents. Sensitive to anticipated criticism on this score, Justice Sandra Day O'Connor said of the change in the court's tune, "We do not depart from the fabric of the law; we restore it." That led dissenter John Paul Stevens to observe that this invited skepticism. It sure does.

Affirmative action in behalf of minorities (and women) by government has proved a good tool in overcoming the effects of past and lingering discrimination. The court ruled previously that state and local governments are extremely limited in engaging in this practice. Their affirmative action and contract set-aside policies are subjected to "strict scrutiny" by courts. That has meant that only "narrowly-tailored" measures in behalf of "compelling" governmental interests were constitutional. It also meant that almost all such preferences were unconstitutional. But the federal government was treated differently. That was because the Fourteenth Amendment specifically gives Congress "enhanced" powers to see that blacks are protected against government discrimination.

Because of Monday's ruling, Congress -- and the executive branch -- will henceforth be as hobbled as other governments, held to the same standard. In cases involving federal affirmative action or set-asides, whites suing to overturn preferential treatment for minorities will win. So probably will men suing to overturn federal preferential treatment for women. Perhaps not always: Justice O'Connor says she does not believe strict scrutiny is "strict in theory and fatal in fact," as critics charge, but we'll soon find out now that the court has reversed itself.

Sometimes government set-asides and affirmative action are unfair. Nevertheless, we believe that in many cases fairness can be achieved only by such approaches. On balance, these programs are good not only for specific beneficiaries but for affected institutions and society as a whole. Many private enterprises have practiced affirmative action and benefited by it. (Private enterprise won't be affected by the court's ruling.)

Those who object to affirmative action and set-asides on constitutional grounds make a simplistic argument that taking race into account is as wrong when practiced by a majority on behalf of a previously discriminated against minority as when practiced by the majority to the detriment of such a minority. That is simply not true. Justice Stevens summed this view up pithily: "[It] disregards the difference between a 'No Trespassing' sign and a welcome mat."

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