Race Matters: New cases return a volatile issue to the top of the Supreme Court's agenda

David G. Savage

At the U.S. Supreme Court, the biggest surprise often comes at the end. So it was on June 27, 1990, the last day of the term, with a decision on the constitutionality of federal affirmative action still to be announced.

A year earlier, the Court had struck down a Richmond, Va., program that reserved 30 percent of city contracts for minorities. By a 63 vote in Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), the justices had said the Constitution does not tolerate such blatant racial preferences except in "extreme" instances where they are clearly needed to remedy proven past discrimination.

But strictly speaking, the decision in Croson applied only to state and local government, not at the federal level. Metro Broadcasting v. Federal Communications Commission, the case still pending on the final day of the 1989-90 term, would determine whether the same standard applied when Congress mandated affirmative action. The FCC had been told by Congress to give minorities a preference when awarding licenses for radio and television stations. Most everyone assumed the result would be the same as in Croson. They were wrong.

An audible gasp was heard in the courtroom when it was announced that Justice William J. Brennan, the 84-year-old leader of the Court's shrinking liberal wing, would deliver the opinion in Metro Broadcasting.

At first, the aged justice's raspy voice could barely be heard as he outlined the facts of the case. Then, mustering all his strength, Brennan declared, "We hold that benign race-conscious measures mandated by Congress, even if those measures are not remedial, are constitutionally permissible."

Brennan's surprising opinion had won not only the support of his liberal allies, Thurgood Marshall and Harry A. Blackmun, but the votes of two justices who had been on the other side in the Croson decision: Byron R. White and John Paul Stevens.

Though the majority was shaky, Brennan's opinion spoke broadly. It preserved and strengthened at the federal level a system of racial and ethnic preferences that sought to correct certain imbalances. In 1993, for example, federal agencies awarded more than $10.5 billion in contracts to minorityowned firms in compliance with congressional directives on affirmative action.

But looking back now, the ruling in Metro Broadcasting may well have been the last stand of the Supreme Court's liberal wing. Only three weeks after Brennan delivered the opinion, he suffered a slight stroke and was forced to retire. In 1991, Marshall retired.

The Future of Affirmative Action

Two other members of the Metro Broadcasting majority--Justices White and Blackmun‹have stepped down as well. Stevens remains as the only signer of the Court's last opinion upholding government affirmative action, and his support was clearly the most tentative.

But the four dissenters in Metro Broadcasting are still around. And they apparently have gained at least one ally among the newer justices. Clarence Thomas, who replaced Marshall, often has stated his belief in a "color blind" Constitution.

Those five appear ready to instigate a major change in the law on race and affirmative action.

Since the Supreme Court's 1978 decision in Regents of the University of California v.. Bakke, 438 U.S. 265, the law in this area has swayed in an uneasy balance.

While official discrimination against blacks and some other minorities has been absolutely barred under the equal protection clause of the 14th Amendment to the Constitution, some preferences in favor of minorities have been allowed as a means of achieving real equality. All along, the Court's few opinions upholding official affirmative action have spoken of the practice as a temporary measure.

The time may be up now that a new potential majority exists among the Court's conservative justices, who have never endorsed the theory that the Constitution creates a double standard on matters of racial discrimination.

"At the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals," wrote Justice Sandra Day O'Connor in her Metro Broadcasting dissent, joined by Chief Justice William H. Rehnquist, and Justices Antonin Scalia and Anthony M. Kennedy. "The Government may not allocate benefits or burdens among individuals based on the assumption that race or ethnicity determines how they act or think."

Kennedy, in his own equally strong dissent, derided the liberals' assertion that the approved racial discrimination was "benign." That he said. sounded distressingly like the rationale used in Plessy v. Ferguson, 163 U.S.537 (1896). to affirm the "separate but equal" doctrine.

"I cannot agree " he concluded "that the Constitution permits the Government to discriminate among its citizens on a basis of race in order to serve interests so trivial as 'broadcast diversity.'

" The opportunity to change direction on affirmative action and other race-related issues will come this term, as the Court begins considering major cases in the areas of federal contracting, voting rights and race-based scholarship.

Minority Contracts

Adarand Constructors, Inc. v. Pena, No. 93-1841, poses a direct challenge to the policy, upheld in Metro Broadcasting, specifying that some contracts on federal projects be awarded to minorityowned firms.

Since 1978, the Small Business Act has required federal agencies to direct "not less than 5 percent" of their contracts to small businesses "owned and controlled by social and economically disadvantaged individuals," defined by the act to "include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans and other minorities."

In 1989, the Department of Transportation awarded the contract to do guardrail work on a highway project in Colorado to a minority-owned firm, prompting a lawsuit by Adarand Constructors, a white-owned firm that had submitted the lowest bid. The contract to the minority firm, Gonzalez Construction Co., was upheld by a federal district court, whose decision was affirmed by the U.S. Court of Appeals for the 10th Circuit.

Citing the Supreme Court's rulings in Fullilove v.. Klutznick, 448 U.S. 448 (1980), and Metro Broadcasting, the 10th Circuit said courts "must apply a lenient standard" of review to federal affirmative action programs, not the "strict scrutiny" applied to state and local programs under Croson. Strict scrutiny requires that a measure be closely related to a "compelling" government interest.

In a petition for certiorari on behalf of Adarand, the Mountain States Legal Foundation urged the Supreme Court to end the current double standard on official affirmative action and require federal programs to pass "strict scrutiny" muster.

If the Court adopts this approach, its ruling could cut across scores of federal programs. While officials might still direct contracts to "disadvantaged" businesses, they could not do so simply by looking at the race or ethnic background of the owner.

The Gerrymandering Dilemma

The constitutionality of congressional electoral districts created by racial gerrymandering is at issue in United States v. Hays, No. 94-558.

On June 28, 1993, the Supreme Court ruled 5-4 in Shaw v. Reno that congressional districts drawn for racial reasons must pass the strict scrutiny test. That ruling revived a white voter's challenge to the constitutionality of two new black majority districts in North Carolina, one of which stretched along Interstate 85 for 160 miles, from Durham to Charlotte.

Not coincidentally, the Court majority was composed of the four dissenters in Metro Broadcasting joined by Clarence Thomas.

But after a trial, a three-judge district court panel upheld the two districts created by the North Carolina Legislature and ruled that they furthered the state's compelling interest in creating a representative congressional delegation.

However, federal judges in Louisiana, Texas and Georgia have struck down black majority districts and set rigid rules against "race conscious" districting.

A ruling by the Supreme Court affirming those decisions would seriously undercut the Voting Rights Act and threaten most majority-minority districts in the South, U.S. Solicitor General Drew S. Days III told the justices in his appeal in Hays. (By and large, those are the only districts in the South that have elected black legislators.)

Days urged the Court to rule that only "extremely irregular" districts violate the Constitution.

A third race-related case, Podberesky v. Kirwan, working its way toward the Supreme Court concerns the relatively common practice at colleges and universities of setting aside at least some scholarships exclusively for students who are black, Hispanic, Asian, Native American or female.

In 1990, this issue briefly flared into a national controversy when Michael L. Williams, a civil rights official in the Department of Education, advised colleges that these race-exclusive scholarships violated federal civil rights law. But flustered by the ensuing uproar, the Bush administration backed down with a pledge to study the matter. In early 1994, the Clinton administration approved "racetargeted financial assistance."

But in October, the 4th U.S. Circuit Court of Appeals ruled in Podberesky that these scholarships at a state university violate the equal protection clause of the 14th Amendment. The suit was filed by a 22-year-old Hispanic student with a 4.0 grade-point average in high school who had been turned down for a scholarship program at the University of Maryland that was open only to black students.

A day after the appeals court ruling, Maryland university officials said they would take their case to the Supreme Court.

The three cases on federal contracting, voting rights and race-exclusive scholarships give the justices a chance to write a new chapter on race and equal protection. The arithmetic of the Court's new lineup suggests they will do just that. But then again, four plus one does not always make five at the Court. So when June rolls around, stay tuned for yet another possible surprise at term end.

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Carl Gutierrez-Jones
Department of English
University of California Santa Barbara, CA 93106
E-mail: carlgj@humanitas.ucsb.edu