In striking down an affirmative-action program in Richmond, Va., the U.S. Supreme Court for the first time has explicitly stated
that laws favoring blacks over whites will be judged by the same "strict scrutiny" as laws favoring whites over blacks.
In doing so, the court has placed too onerous a burden on states and municipalities that want to address the lingering effects of past discrimination. Justice Sandra Day O'Connor, writing for the majority, said that municipalities, to justify setting aside a certain amount of city business for minority contractors, would
have to give highly specific evidence that qualified minority firms had been denied contracts.
This demand for evidence, however, will leave a great deal of discrimination without a remedy. To justify set-asides, a municipality will now have to give a detailed confession of its own past instances of discrimination. And, even if the municipality is willing to implicate its own past conduct, often the specific
evidence will simply not exist.
But bleak figures do show the continued effect of past racial discrimination. The Urban League reported that blacks in 1988 were three times as likely as whites to be poor, and 2 1/2 times as likely to be jobless. Blacks are 60% more likely to lack health insurance, and black life expectancy has actually been declining. In lending, a crucial component to the success of new business ventures, there is also evidence that blacks are treated less well than whites: Savings-and-loan institutions have rejected black applicants for home loans twice as often as whites, and in some localities high-income blacks are rejected at the same rate as low-income whites.
Our courts and our legislatures should remain aware of the sharply different conditions that persist between the races. Fortunately, even after the Supreme Court's decision, there is much that can be done.
The Richmond decision, for instance, involved a local government. It did not affect the constitutionality of Congress' power to remedy past discrimination. The court specifically restated its approval of the Public Works Employment Act's 10% set-asides for minority businessenterprises and emphasized the
power of Congress to take such action in light of its special grant of power in the 14th Amendment.
Thus Congress should explore using its authority to empower states and localities, at least in federally funded projects administered through the states, to remedy the continuing effects of past discrimination through affirmative-action provisions.
And there are other ways in which states and localities can respond in order to comply with the new decision.
First, governments must do a better job than Richmond did in laying a factual basis for affirmative-action laws and carefully tailoring them to address clearly described past discrimination. To meet the court's strict new test, state and local lawmakers should marshal evidence concerning the particular industry in the
particular state or locality.
Second, the percentage of set-asides should be more realistic. Richmond required either the prime contractor to be a minority business enterprise or 30% of the dollar amount to be subcontracted to minority businesses. The court majority criticized the 30% level. Indeed, the 10% level in the federal law appears more realistic and constitutionally sustainable.
Third, it may help to set goals, rather than fixed quotas, for minority contracts. The Richmond law was struck down even though it had waiver provisions. But more general goals, backed by political enforcement through public pressure rather than legal enforcement in the courts, would almost certainly pass constitutional scrutiny.
Finally, states and localities can accept the court's invitation to try ways neutral of race to encourage contracting with small and disadvantaged firms. Public funding to help economically disadvantaged groups, irrespective of race and including female entrepreneurs, could well be a new and better way to provide a
disproportionate benefit to blacks, Latinos and Asian Americans who remain economically disadvantaged.
In the long run there are actual advantages to directing help to the economically disadvantaged, rather than maintaining racial quotas. Race-conscious remedies clearly have a place in an interim period of correcting for past discrimination. But quotas and set-asides lack broad-based political support, even among many
Americans committed to equal opportunity. Racial remedies, even through justified by past acts of discrimination, cut against the grain of the American concept of fairness. By focusing on economic opportunity, we can work toward a new consensus to address the lingering legacy of unequal opportunity.