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_ , _ 0: Biskupic ——_—_Wainetn Post Sat Wreer Washington Post Seaff Writer The Supreme Court yesterday jeopardized a broad range of federal affirmative action programs with a ruling that set a tough new standard for justifying policies designed to benefit blacks, Hispanics and other minorities. The 5 to 4 ruling in a Colorado highway contracting case is unlikely to resolve the growing public contro- versy over whether set-asides, hiring goals and scholarship programs for Minorities are justified by the experi- ence of discrimination or constitute unfair preferences causing “reverse discrimination” against whites. Instead, yesterday’s decision sets the stage for a multitude of court challenges against federal programs ® for minorities, and it Mes at a time when affirmative action is becoming a major point of contention between President Clinton and his likely Re- publican challengers. In refusing for the first time to up- hold a federal affirmative action policy the court said that such race-based policies enacted by Congress must now survive the same judicial stan- dard that state and local programs have faced since 1989. Known as “tri. inv,” it is the toughest ju- SS. meet. To survive, a program must serve a compelling governmental interest and must be narrowly tailored to address identifi- able past discrimination. “Government may treat people differently because of their race only for the most compelling reasons,” Justice Sandra Day O’Connor wrote for the court. She said the Constit of the laws protects “persons, n ae 0! beep . t follows irom that principle th: all governmental action based c race—a group classification lon recognized as ... irrelevant an therefore prohibited—should b- subjected to de Judicial inquir to ensure that the personal right t “equal protection of the laws has nc been infringed.” The court offered no examples ¢ federal permissible policies and gen erally the majority denounced al government distinctions based or race. The ruling in Adarand Cor. structors v. Pena, however, does no’ strike down any specific federal poli- cies, not even the Small Business Administration (SBA) contracting Excerpts from the Supreme Court ruling yesterday on iffirmative action programs. _ From Justice Sandra Day O’Connor's majority opin- ton: ' Any person, of whatever race, has i that any governmental actor su n justify any racial classification subjecting that person to unequal treatment under the judicial a govi ; cordingly, we hold today that all racial classifica-* liofiS} imposed by whatever federal, state or local gov- eriment actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental inter- ests," 4 We wish to dispel the notion that strict scrutiny j “‘I*striet in theory but fatal in fact.” The ESS V persis- iW tericé of both the practice and the lingering effects of ra- dal‘discrimination against minority groups in this coun- try is an unfortunate reality, and the government is not 4 disqualified from acting in response to it. en race-based action is necessary to further a com- ling interest, such action is within constitutional con- straints if it satisfies the “narrow tailoring” test this court J has-set out in previous cases. use our decision today alters the playing field in some important respects, we think it best to remand the case to the lower courts for further consideration in light of the principles we have announced. From Justice Antonin Scalia’s concurring opinion: In my view, government can never have a compelling linterest in discriminating on the basis of race in order to = Ruling puts pressure on the president to clarify his stance. * The Fifth and 14th ndments to the. Constitution Bf fect Persons, not. . e follows from that panic _ hatred, p action based on race. . . should - be Subjected to detailed judicial inquiry to ensure that the . tsonal right to equal protection of the laws not program that was the subject of the Page A6 See COURT, AG, CoL 6 [ e e ‘@ . ° - : Strictest Judicial Serutiny’ Is N ecessary . feat ; make up for'past racial discrimination in the opposite di- Individuals who have beer wronged by unlawful racial C9} mace W: ? T OUr COlt- Stitution there can be no Such things either a creditor or debtor race. To pursue the concept of racial entitlement—even for * the-most admirable and benign of purposes—is to rein- force and preserve for future mischief the way of think- ing that produced Trace slavery, race privilege and race From Justice Clarence Thomas's concurring opinion: Governmént cannot make us equal; it can only recog- nize, respect and protect us as equal before the law. t these programs may have motivated, in * part, by good intentions cannot provide refuge from the principle that under our Constitution the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disad- vantaged. . . From Justice John Paul Stevens's dissent: - ; Instead of deciding this case in accordance with con- trolling precedent, the court today delivers a disconcert- ing lecture about the evils of government racial classifi- cations. a, e consistency that the court espouses would disre- gard the difference between a “No Trespassing” sign and a welcome mat. It would treat a Dixiecrat senator’s deci- sion to vote against Thurgood Marshall’s confirmation in order to keep African Americans off the Supreme Court as on a par with President Johnson’s evaluation of his nominee’s race as a positive factor. An interest in consistency does not justify treating dif- ferences as though they were similarities.