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Justices Limiting Affirmative Action : Reagan's Legacy: Court Curbs on Anti-Bias Laws

June 15, 1989|DAVID G. SAVAGE | Times Staff Writer

WASHINGTON — Three days after Ronald Reagan left office, his lasting impact on the Supreme Court became clear.

On Jan. 23, the court's five conservative justices declared that, from now on, government programs that give preferences to blacks and other minorities will be judged just as strictly as programs that favor whites.

That declaration, combined with two recent decisions revising federal anti-discrimination laws, rewrites the rules for affirmative action that have been developed over decades to promote minority opportunity in businesses, schools and government nationwide.

Where for years the high court upheld, and in some instances encouraged, programs that gave an edge to blacks and other minorities in jobs, enrollments or contracts, now the firmly conservative majority has abruptly reversed the trend.

The result, legal experts say, is that the nation's 25-year experiment with affirmative action appears to be slipping away.

"It's obvious the court has crippled civil rights litigation in general and affirmative action in particular," Steven Shapiro of the American Civil Liberties Union said. "This is not the end of affirmative action, but it will now be much more difficult to maintain."

In the January ruling, the court struck down as unconstitutional local and state government programs that reserve a percentage of public contracts for black entrepreneurs. Last week, the court made it harder for civil rights lawyers to use statistics to prove that their clients had suffered discrimination and easier for employers to rebut such charges. This week, it opened the door for white men to attack court-approved plans that benefit blacks.

As it stands now, businesses and public agencies may still take steps to improve or increase opportunities for minorities and women. And civil rights lawyers may still challenge policies designed specifically to exclude those groups.

However, public agencies may no longer set quotas or specific preferences for such groups as blacks, Latinos or women--which previously had been allowed in some cases to remedy discrimination. Private businesses will be under less pressure to hire or promote minority members. And civil rights plaintiffs will face difficulty in challenging employment policies that have the effect, even if unintentional, of discriminating against minorities.

Such a shift fulfills one of Reagan's top priorities in appointing three conservatives to the high court.

"I do not believe that you can remedy discrimination by discriminating," he said in 1984. The use of quotas based on race, sex or ethnic origin violates this nation's historic ideal of equal opportunity for every person, he said.

Throughout his eight years in the White House, however, the Supreme Court by a slim margin had adhered to a different view. It was a view first put forth by President Lyndon B. Johnson in 1965.

In a nation with a long history of institutionalized repression of blacks, it is not enough for the government just to stop discriminating against blacks, Johnson said. Rather, the government must seek "equality as a fact and as a result."

To reach that stage of equality requires, Johnson said, "affirmative action" by the government that gives blacks an edge in educational opportunities, jobs and public contracts.

From 1964, when Congress enacted the landmark Civil Rights Act, until 1987, when Justice Lewis F. Powell Jr. retired, a majority of the Supreme Court could usually be counted on to support at least the concept of affirmative action.

Still, the justices never seemed entirely comfortable with the idea of what the liberal jurists called "race-conscious" programs.

In 1978, for example, Powell said that the University of California, Davis, could not use a minority admissions quota to deny enrollment to Allan Bakke, a highly qualified white applicant, in its new medical school. However, in the same opinion, Powell endorsed the idea of a university's seeking out minority applicants and using their race or ethnic background as a factor in their favor.

In a variety of cases in the next decade, the high court upheld affirmative action plans that were "voluntary" efforts to open doors for minorities. It also accepted, in certain cases involving a history of blatant racial exclusion, court-ordered quotas to provide remedies.

Citing Congress' responsibility for addressing the nation's pattern of racial discrimination, the court upheld a 1978 law that reserved 10% of public works projects for minority firms.

But a new skepticism about such preferences emerged last year after Reagan's third appointee, Justice Anthony M. Kennedy, joined the high court.

Now, the conservative majority has shown itself willing to side with whites who say that affirmative action is really reverse discrimination.

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