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Supreme Court Sets Stricter Standard for Racial Preferences

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Diving into the national debate over affirmative action, the U.S. Supreme Court last week cast serious doubt over federal programs that award benefits based on race.

In a case involving a federal highway set-aside program, the High Court issued a broad ruling that federal programs providing preferential treatment to minorities must meet an extremely high level of constitutional scrutiny.

The 5-to-4 ruling in Adarand Constructors Inc. v. Pena (Case No. 93-1841) will probably open the door to legal challenges of all manner of federal racial-preference programs, including some in the Education Department, legal experts said.

For example, the department and other federal agencies sponsor numerous educational-fellowship programs targeted at members of minority groups.

"All of those are suspect and on very shaky ground at this point," said Paul Kamenar, the executive legal director of the Washington Legal Foundation, an organization that has challenged racial-preference programs, including a University of Maryland scholarship program for black students that was invalidated by federal courts. (See Education Week, 5/31/95.)

"We think the Department of Education will have to review if not abandon these types of programs," Mr. Kamenar said.

Rodger Murphey, a spokesman for the department, said last week that officials were completing an evaluation of racial-preference programs as part of the Clinton Administration's review of affirmative action throughout the federal government.

Education Department programs targeted at minorities include the Patricia Roberts Harris Fellowship Program, which provides assistance to women and members of minority groups in fields in which they have been underrepresented, and the Minority Teacher Recruitment Program, which provides some $2.5 million in grants to institutions for efforts to encourage minority students to become teachers.

Both programs face elimination in this year's budget process.

Strict Scrutiny

In its opinion in Adarand, the Supreme Court has put the federal government on the same playing field as state and local governments, whose programs were addressed in a 1989 case, City of Richmond v. J.A. Croson Company. In that case, the Court struck down a city set-aside program and ruled that state and local affirmative-action programs must be designed to directly remedy prior discrimination.

The Court said such programs must meet a judicial test known as "strict scrutiny," which means the programs must be narrowly tailored to advance a compelling governmental interest.

The Court's ruling in Croson has led to numerous challenges to minority set-aside programs maintained by cities and school districts. However, many local governments have been able to keep modified programs by proving that they remedy past discrimination within their communities.

In Adarand, the Court has now applied the "strict scrutiny" standard to federal programs.

The majority opinion, written by Associate Justice Sandra Day O'Connor, declared that "strict scrutiny of all racial classifications is essential" to distinguish between those designed to remedy past discrimination from those that "are in fact motivated by illegitimate notions of racial inferiority or simple racial politics."

But she said that the tough test need not be fatal for all affirmative-action programs.

Justice O'Connor was joined in most of her opinion by Chief Justice William H. Rehnquist and Associate Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.

A Range of Views

However, Justices Scalia and Thomas issued concurring opinions indicating they would go much further and bar all governmental racial preferences.

"These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are 'entitled' to preferences," Justice Thomas wrote.

Associate Justice John Paul Stevens, who had joined the majority striking down the Richmond affirmative-action program in Croson, wrote a dissent saying that the federal government should be given more leeway than state and local governments in this area.

The other dissenters were Associate Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer.

Abigail Thernstrom, a senior fellow at the Manhattan Institute, a public-policy organization in New York City, said the High Court's ruling helps legitimize the debate over affirmative action.

"This is a statement that says to people making public policy, whether they are governors or members of Congress, that it is O.K. to raise serious questions about all this racial sorting," she said. "It means you are not on the moral low ground."

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