Within hours of the Supreme Court’s decision Monday on federal affirmative action plans, many people had written the obituary for programs that benefit minorities.
By holding federal programs to the same strict standard now imposed on state and local plans, they said, the court had delivered a death blow.
But city and state officials who have worked to develop affirmative action plans under that tougher standard, including those in Illinois, said Tuesday those reports are premature.
“The city (of Chicago) has not cut back on affirmative action, although it has imposed greater safeguards,” said Lawrence Rosenthal, deputy corporation counsel. “And today, we are sending more business to minority businesses than we did before.”
That’s not true everywhere. In fact, municipal and state programs were greatly curtailed after the tougher standard was imposed on them in 1989-one study says by as much as 75 percent. But where communities have been committed to these programs to remedy past discrimination, they have remained strong.
Nevertheless, it certainly will make it more difficult for Congress to defend affirmative action.
“It really comes down to an issue of political will,” said Anthony Robinson, president of the Minority Business Enterprise Legal Defense and Education Fund. “Without that political will, it just won’t happen.”
In the months to come, the court’s decision is certain to reverberate in a Congress grappling with the politically charged issue of affirmative action.
President Clinton has ordered a full-scale review of affirmative action programs.
Conservatives have seized the court decision as evidence that the Supreme Court, like an increasing number of white Americans, is hostile to affirmative action.
But the decision’s impact on affirmative action may have more significance in the political arena than in the courtroom.
The Supreme Court, in imposing that standard on federal programs, was careful to note that some programs will withstand judicial scrutiny. The result of its decision is not “fatal in fact” to affirmative action, Justice Sandra Day O’Connor wrote for the court.
Determining which kinds of programs are allowed, however, likely will take years, as federal courts evaluate them under the new tough standard.
To that end, legal observers said Tuesday that examining the effect of the tough standard on state and local programs could provide a useful guide to gauge what kind of federal programs can survive.
In practical terms, they said, the tough standard has not resulted in the wholesale dismantling of state and local programs, but has only required governments to more carefully justify them.
In many cities, politicians have refused to do that-either because the city budget would not cover the cost of preparing detailed studies or because they simply wanted to abandon affirmative action.
The Supreme Court six years ago said it would scrutinize state and local government affirmative action programs to see whether they were narrowly written to address past discrimination. In response, large cities such as Chicago revised their plans so they would pass the strict judicial test.
The result has been anything but fatal in cities where the political leadership has been willing. Chicago, for example, now sends more business to minority companies than it did before the 1989 decision.
Last year, Chicago awarded about a third of its city contracts-amounting to some $250 million-to minority businesses participating in its affirmative action program.
More Top Picks What Age Can A Child Be Screened For Irlen Syndrome
But the 1989 decision, in a case from Richmond, Va., did force the city (and others with affirmative action plans) to conduct a detailed study showing the programs addressed specific acts of past discrimination. Some cities simply dropped the plans rather than conduct the studies.
Robinson, of the Minority Business Enterprise Legal Defense and Education Fund, said Tuesday that about 100 of the 236 jurisdictions that had affirmative action plans before the 1989 decision conducted the studies. Of those 100, more than half-from Atlanta to San Fransciso-had adopted new plans.
Chicago adopted its new plan in 1990, upon the recommendation of a blue-ribbon panel appointed by Mayor Richard Daley. Panelists included current and former judges, who worked to ensure that a new program would pass judicial muster.
Chicago’s plan has never been challenged. But courts have upheld new programs, such as those in Seattle and Denver, which detailed why the plans were necessary and made sure they didn’t go further than required to solve the problem.
For example, the programs must show specific discrimination existed in the city, such as a reluctance on behalf of white contractors to do business with minority companies, Rosenthal said.
Then, they must be narrowly tailored to address that problem. Chicago’s plan, for instance, is careful to ensure that minority companies are really disadvantaged. When a company reaches a certain income level, it no longer can participate in the program.
The tougher standard, for example, forced Chicago to drop Native Americans from its affirmative action programs, because the city could not prove they had suffered specific acts of discrimination, Rosenthal said.
Cook County went through a similar process of updating its 1988 law on minority contracting. Until the new law took effect in January 1994, however, the county could only seek voluntary compliance with the old law, county officials said.
With the Supreme Court’s call for strict scrutiny of federal programs, the government must undertake detailed studies like those done in Chicago and Cook County.
But it may be difficult for the federal government, as opposed to state and local governments, to show the programs are narrowly designed to address specific discrimination.
The programs are broad by definition: They are administered on a nationwide level, even though different people in different parts of the country may suffer different kinds of discrimination.
Nonetheless, legal observers said the federal government could design a program that, for example, applied only in areas in which minority businesses were suffering the effects of discrimination.
“It’s a pretty clear message that this is still possible, but we’re going to expect a very compelling reason,” said Rep. Harris Fawell (R-Ill.), whose House subcommittee is examining federal affirmative action policies.
The court’s action was welcomed by white businessmen like Al Hallman, who say they have been victims of “reverse discrimination.”
As a result of Chicago’s effort to help minority companies, “our business has decreased substantially,” said Hallman, an official with Bayfield Construction Co. in Chicago.
And once his company completes a city contract, it will restrict its business to the nearby counties, said Hallman. Several years ago, he noted, the city supplied nearly three-fourths of his company’s business.
In contrast, James Bunta, an attorney with Chicago-based James McHugh Co., said his company has learned how to live with programs that foster minority businesses and minority hiring.
“Our minority outreach and policies are not an issue of law, they’re just good business sense,” he said. “It’s interwoven in our business culture.”
Paul M. King Jr., president of UBM Inc., a well-established minority-owned construction company in Chicago, said his company has clearly benefited from policies that help minority companies.
The programs are “not a giveaway,” said King, who gets as much as 70 percent of his business from contracts set aside for companies like his. The rules simply open doors for minorities to compete, he said
He does not expect such programs to disappear in Chicago. The reason, he said, is that it is easy to prove “that there has been past discrimination.”
But Darrin Bush is not as confident about his company’s future. Six months ago he opened a pharmaceutical distribution company in suburban Wood Dale with hopes that two-thirds of his business would come from minority business set-asides.
Anticipating the court’s action, he decided a while ago to strictly do business with private companies. Even if minority contract programs survive, he reasoned, they will likely face stiff legal challenges.
So, too, he expects business to shy away from getting involved with minority contracts to avoid being sued.