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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.

This rigid insistence on categories--race is race and therefore strict scrutiny is called for--may also result in a curious anomaly. The court has treated gender differences more charitably--giving officials more leeway in differentiating between men and women than between races. If the court extends the same leeway to affirmative-action plans for women, it will be far more lenient toward those plans than to plans for blacks.

One federal court in California has already done exactly that--upholding a contract set-aside for women while striking down a similar plan for minorities. Though affirmative-action plans are still necessary for women, they are even more needed for blacks--but that is not the way things may turn out.

The court's decision will make it far harder for the federal government to require affirmative action on the part of its many contractors and subcontractors, even if it does not end it entirely. Coming just as affirmative action has become a hot political issue, it may well set off a chain reaction of challenges in other contexts, such as employment and education--just as the 1989 Richmond case did with state and local programs. It may even affect the private sector, where most affirmative action takes place.

In 1883, a Supreme Court justice declared in The Civil Rights Cases: "There must come a stage in the progress of [a black man's] elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws." The nation was tired of Reconstruction idealism and perplexed by the uncertainties and disruptions of America's entry into the industrial age. The Civil Rights Cases decision marked the beginning of 75 years of legally sanctioned discrimination and repression of black people in America.

We seem to be going through the same thing today. Insecure because millions are losing jobs even though the economy is expanding at a healthy rate, and tired of the effort to make up for what they consider the misdeeds of their forebears, many Americans have apparently decided they have done enough about America's race problems.

Although the horrors of the post-Reconstruction period will certainly not reappear, more economic and social misery for racial minorities is almost certain. The U.S. Supreme Court's decision will obviously not produce that all by itself--but it will certainly contribute to it.

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