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TIME: Almanac 1990
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1990 Time Magazine Compact Almanac, The (1991)(Time).iso
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time
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020689
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02068900.004
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1990-09-17
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LAW, Page 60A Blow to Affirmative ActionThe court strikes down a plan to aid minority businesses
Ronald Reagan never made any secret of his distaste for
affirmative action -- the attempt to remedy past discrimination by
giving preferential treatment to minorities. Last week, only days
after Reagan left office, his goal of reining in such programs got
a major boost from the Supreme Court. By a 6-to-3 vote, the court
struck down a Richmond ordinance intended to guarantee blacks and
other minorities a greater share of the city's construction
contracts. The decision not only threatened similar programs in 36
states but also potentially opened the door to legal attacks
against other racially based government schemes.
The Richmond case began in 1983, when the black-dominated city
council approved an ordinance setting aside 30% of the dollar
amount of its municipal projects for minority-owned construction
firms. The council found that although Richmond's population was
half black, less than 1% of all public-works contracts had gone to
minority firms. But Justice Sandra Day O'Connor, writing for the
majority, charged that the city had not specifically proved a level
of past discrimination that would support its 30% set-aside rule.
Wrote O'Connor: "An amorphous claim that there has been past
discrimination in a particular industry cannot justify the use of
an unyielding racial quota." Although the Richmond law was intended
to help minorities, she argued, quota systems are inherently
dangerous.
A key component of the court's ruling was the requirement that
all government distinctions based on race be subject to "strict
scrutiny." This means that public-sector affirmative-action
programs are valid only if they serve the "compelling state
interest" of redressing "identified discrimination." Justice
Thurgood Marshall, in a bitter dissent joined by Justices William
Brennan and Harry Blackmun, called the decision "a deliberate and
giant step backward in this court's affirmative-action
jurisprudence."
Legal experts see trouble ahead for set-aside plans and other
government-sponsored racial remedies. "It's clear that
affirmative-action programs will be harder to justify," concludes
Professor Laurence Tribe of Harvard Law School. Officials around
the country expressed concern over how their plans would fare under
the ruling. The National League of Cities found the decision
"troubling in what it says about the capacity of states and cities
to govern at all in some matters."
Some experts took a political view of the ruling. Professor
Charles Abernathy of Georgetown University Law Center attributes
the court's decision to the fear that as blacks take power in
cities such as Richmond, laws will be passed to benefit blacks over
whites. Observes Abernathy: "The court is saying that it won't
stand for black leaders using power to reward their friends at the
expense of others."
Despite the new limitations, the death knell has not yet
sounded for affirmative action. Last week's decision did not affect
plans by private companies to increase minority hiring, nor did it
nullify the Federal Government's set-aside program. Some experts,
moreover, feel that local governments may be able to document past
inequities in a way that would satisfy the court. Says Parren
Mitchell, chairman of the Minority Business Enterprise Legal
Defense Fund: "The evidence of discrimination necessary to justify
affirmative action on behalf of minority businesses exists."
Another way to salvage set-aside programs might be to use
flexible targets rather than quotas. Minority-owned firms in
Atlanta, for example, have won $300 million worth of business since
1974, when the city set a minority "goal" that now stands at 35%.
Mayor Andrew Young optimistically predicts that "this ruling will
not affect minority participation." That remains to be seen,
however, as the expected flood of challenges by white plaintiffs
works its way through the courts.