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Affirmative-Action Ruling May Affect E.D. Programs

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The Justice Department has urged all federal agencies to "evaluate federal programs that use race or ethnicity as a basis for decisionmaking" to insure they are consistent with a recent U.S. Supreme Court ruling that set a new, stricter standard for federal affirmative-action policies.

The department's 37-page memorandum comes in the midst of a governmentwide review of affirmative-action programs ordered by President Clinton in February.

In Adarand Contractors Inc. v. Pena (Case No. 93-1841), the Court ruled 5 to 4 last month that federal programs that use race-based qualifications must serve a "compelling interest" and must be "narrowly tailored" to meet that interest. An earlier decision had applied that standard to local programs. (See Education Week, 6/21/95.)

The Justice Department guidance document suggests that while the Adarand case involved contracting, "the impact of the decision ... will reach race-based affirmative action in health and education programs, and in federal employment."

Judith A. Winston, the Education Department's general counsel, declined through a spokesman to discuss the guidance or the review, and it is difficult to determine if any of the agency's contracts call for minority set-asides of the kind central to the Adarand case.

An Education Department spokeswoman said that recently issued guidelines for the up~com~ing competition for research lab~ora~tories and centers--one of the agency's largest contracting efforts--include no such preferences.

Severe Scrutiny

Only a small percentage of federal elementary and secondary education programs specifically target minorities, although some serve Native Hawaiian or American Indian students. The Justice Department suggested that programs for American Indians could be deemed legal because tribes are considered sovereign nations.

The memorandum also contended that the High Court ruling would not affect federal funding of historically black colleges and universities, which are targeted in some higher-education programs.

The Education Department also runs some higher-education scholarship programs solely for minorities and women. Observers said that this type of program is likely to receive severe scrutiny in light of recent High Court action. Moreover, they said, federal officials' interpretation of civil-rights law may also be questioned.

Federal aid "used to support any kind of preference program could be in trouble," said Paul Kamenar, the executive legal director of the Washington Legal Foundation.

The foundation represented a student who successfully fought a University of Maryland scholarship program that was limited to blacks. The Supreme Court let stand a lower-court ruling that the program was unconstitutionally discriminatory. (See Education Week, 5/31/95.)

Many colleges have such programs, and virtually all higher-education institutions are subject to civil-rights laws because they receive federal funding.

Clinton Administration officials, said Mr. Kamenar, now "clearly recognize that a lot of these programs might not survive scrutiny by the courts."

The Justice Department's guidance noted that "outreach and recruitment efforts conceivably could be viewed as race-based decisionmaking of the type subject to Adarand if such efforts work to create a 'minorities-only' pool of applicants or bidders, or if they are so focused on minorities that nonminorities are placed at a significant competitive disadvantage."

Further Litigation?

The department suggested that while the Court would probably grant Congress more leeway than state or local governments for enacting affirmative-action programs "to remedy the effects of discrimination," federal programs designed to promote diversity "must show that greater diversity would foster some larger societal goal beyond diversity for diversity's sake."

Al Kauffman, a staff lawyer at the Mexican-American Legal Defense and Educational Fund, said he fears the recent High Court actions will "be used by people who aren't dedicated or focused on minority participation" in education.

"If anything," he said, "it will invite further litigation."

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