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Whose Affirmative Action? : The Court Ruling : The Blind Spot in Strict Scrutiny

June 18, 1995|Herman Schwartz | Herman Schwartz is a professor of constitutional law at The American University.

WASHINGTON — Affirmative action to help disadvantaged black people is no better, morally or constitutionally, than racist laws intended to subjugate them. This startling proposition underlies the U.S. Supreme Court's decision, in Adarand Constructors vs. Pena, imposing strict judicial scrutiny on federal contract set-asides for minorities--though only Justice Clarence Thomas, one of the 5-4 majority and the court's most conservative member, was willing to say so openly.

Normally, federal judges are hesitant to oversee the actions of the two other branches. And for good reason. They are in office for life and accountable to no one but their own consciences--an anomalous element in a democracy.

But democracies can be tyrannical and intolerant. Prejudice may make the democratic process unfair by denying its victims access to the system and a fair chance to influence the process. It took great courage, blood and a federal law before Southern blacks could vote freely.

These shortcomings, inevitable in every society at one time or another, have led most countries to give judges the power to protect democracy's victims by examining and, if necessary, annulling oppressive actions by the elective branches.

In the most intensive form of oversight, the courts skeptically examine governmental actions affecting certain groups to make sure those actions are justified by some compelling state goal, such as national security or public safety. Even if the court finds such a goal, the law must do as little harm as possible to the affected group to achieve it. This most drastic form of oversight is called "strict scrutiny." Inevitably, so few measures can survive such a screen that strict scrutiny has come to be described as "strict in theory, fatal in fact."

Strict scrutiny of official action developed in the U.S. Supreme Court's treatment of laws dealing with blacks, and for good reason: Discrimination and prejudice against black people have been so pervasive, and their exclusion from the democratic process so complete and longstanding, that close and skeptical judicial monitoring of any official action is needed to make sure the actions are not governed by such bias. This holds true for other racial and ethnic minorities.

But there is no such history of discrimination and political impotence for whites in this country. There is virtually no likelihood that laws passed by legislators who are overwhelmingly white will be motivated by prejudice against white people. Thus, where laws happen to adversely affect whites, there is no need for a skeptical judicial probe of legislative purpose, and no good reason why an unelected judiciary should nullify laws enacted by democratically elected representatives.

Affirmative-action plans are, in fact, not aimed at whites at all--though they obviously affect them. Affirmative-action hiring plans, for example, are not intended to deny jobs to whites but to make jobs available to blacks. Any harm to whites is entirely unintentional.

Nor are such plans designed to create, in Justice Antonin Scalia's colorful language, a "creditor or a debtor race" to make the current generation compensate blacks for the sins of earlier Americans. Rather, they are designed to deal with the impact on black people today of what even the court conceded was "the unhappy persistence of both the practice and lingering effects of racial discrimination."

This "unhappy persistence" is documented by many studies showing whites get jobs, housing, educational and economic opportunities at rates far higher than those of equally qualified blacks. Centuries of discrimination are so embedded in institutions and attitudes that whites are often unaware of their impact.

The result is that unless preferences are created, voluntarily or otherwise, "the practice and lingering effects of racial discrimination" continue. When the Richmond, Va., minority-contract set-aside program was struck down in 1989, black participation in Richmond contracts fell from about one-third of the dollar value of the contracts to close to nothing. Only now, after a revised plan went into effect, is the black share approaching about one-half of what it was.

Affirmative-action plans that allocate a relative handful of business or other opportunities for qualified minorities are thus nothing like the racist laws that subjected human beings to brutality, poverty and powerlessness. Only the most willful blindness fails to see this.

To sugarcoat the court's pill, Justice Sandra Day O'Connor emphasized that strict construction does not necessarily mean "fatal," and pointed to a particularly egregious case of discrimination in the Alabama state police as an example of an acceptable affirmative-action plan. She did not mention that she had objected to an important part of that plan because the court that imposed it did not first resort to alternative approaches--a requirement that will doom a great many such plans.

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