Affirmative Action and the Constitution

REMEDYING the lingering effects of racial discrimination is one of the most profound moral and constitutional challenges facing the United States. Where discrimination has prevented many Americans from enjoying the basic privileges of citizenship - an equal opportunity to buy homes, attend schools, obtain government contracts, and find jobs - real progress can be achieved only through strong efforts to include minorities in areas from which they have been excluded. After the Supreme Court's January decision in City of Richmond v. Croson, limiting set-aside programs for minority contractors, some people have argued that race-conscious remedies by local and state governments conflict with the Constitution. But this assessment is wrong. The Supreme Court has insisted that affirmative-action programs be carefully designed - not that they be dismantled. A call for fairness and flexibility in affirmative-action programs should not be equated with a call for retrenchment and retreat.

It would defy not only the Supreme Court's decisions but also the fundamental purposes of the Equal Protection Clause to conclude that the Constitution forbids all remedial measures such as set-aside programs, or requires that they be treated in exactly the same way as the invidious discrimination of the nation's past.

On March 30, 28 noted constitutional scholars and deans of leading law schools gathered in Boston and issued a joint statement on the continued constitutionality of well-constructed affirmative-action programs.

The event had no precedent. The prospect of 28 legal academics agreeing on a detailed statement on an issue as controversial as affirmative action seemed about as likely as 28 leading economists agreeing on a forecast of long-term interest rates.

What was the impetus for this unusual display of unanimity among so many senior legal scholars and deans?

The answer lies in the disturbing number of cities, universities, and other organizations around the country that appear on the verge of dismantling their minority set-aside programs based on an extremely restrictive reading of the Richmond case.

According to the Rev. Charles Stith of the Organization for a New Equality, many city attorneys and corporate counsels have overreacted to the campaign of those who would use Richmond as the legal hatchet with which to slice up minority set-aside programs. He concluded that many city attorneys and mayors were looking for an objective assessment of what the Richmond decision means - an assessment that could muster the support of a substantial cross section of constitutional-law experts.

The constitutional scholars' statement that resulted expressed the clear and unwavering view that affirmative action is by no means a dead letter after Richmond.

THE most fundamental principle noted was the profound constitutional and moral difference between race-conscious measures designed to subjugate minorities to a position of second-class citizenship, and race-conscious measures intended to promote equal citizenship for historically outcast groups.

Writing for the court in Richmond, Justice Sandra Day O'Connor said, not that all racial measures were equally vulnerable to constitutional challenge, but only that such measures all deserve the same ``strict scrutiny'' - so as to ``smoke out'' whether laws claimed as remedies to past discrimination are, in truth, devices for relegating some people to second-class racial citizenship or implementing a crassly racial spoils system.

Second, while the court clearly stated that race-conscious remedial efforts cannot be based on the bare fact of historic societal discrimination, the court has not required that local governments document specific, identifiable instances of their own or others' past discrimination before they can implement reasonable race-conscious remedies. Both in the 1986 Wygant decision and in the 1989 Richmond case, the court found that race-conscious relief could be based on relevant statistical comparisons.

A third point of agreement was the recognition that courts, local governments, and legislatures should address the degree to which racially discriminatory old-boy networks have deterred minority subcontracting businesses from being created or continued. This is especially critical when courts must rely on relevant statistical comparisons to assess the degree of discrimination in a community.

While the court ruled that one cannot assess discrimination as the city of Richmond had - by simply comparing the percentage of city dollars going to minority subcontractors with the percentage of minorities in the population - it may be equally fallacious simply to compare those city dollars with the existing pool of minority subcontractors, when that pool may be significantly diminished because of past discrimination.

The statement also stressed some of the things Justice O'Connor's opinion in Richmond did not say. Her opinion, for example, didn't contradict the practical, sensible rule adopted in analogous constitutional contexts and expressed in her own Wygant opinion - that local governments should be given the chance to establish the relevant factual record after their programs have been challenged. Nor did the court suggest that other governmental interests, such as diversity, could never justify race-conscious measures, or that Congress could not respond to problems caused by the Richmond decision by exercising its authority under the 14th Amendment to enact preventive or remedial measures.

PERHAPS most significant, the very act of so many law school deans and scholars coming together on such short notice is itself a remarkable statement. It is a statement that now is not the time to turn back the clock on civil rights, nor the time to turn our backs on the work that remains to be done to topple the barriers to racial justice and lift up the hope for equal opportunity for all Americans.