j High court strikes down
i Richmond set-aside program
? .
> By JAMES H. RUBIN
v Associated Prsss Wrltsr
WASHINGTON (AP) - The
Supreme Court, dealing a serious
blow to some forms of affirmative
action, earlier this week struck
down a Richmond, Va .? program
aimed at helping construction
1' industry businesses owned by
^minorities.
By a 6-3 vote, the court ruled
/yifte plan is an unlawful form of
: ; reverse discrimination.
Justice Sandra Day O'Connor,
: j writing for the court, said, "Under
> ; Richmond's scheme, a successful
* black, Hispanic or Oriental
entrepreneur from anywhere in
? the country enjoys an absolute
preference over other citizens
; based solely on their race."
"We think it obvious that such a
program is not narrowly tailored
.' to remedy the effects of prior dis
" crimination," she said.
The Richmond plan would
; require the prime contractor on
r ; any city building contract to sub
; contract at least 30 percent of the
value of the project to firms that
?' are at least one-half minority
owned.
, ; O'Connor said, 'The 30 percent
~ quota cannot be said to be narrow
; ly tailored to any goal, except per
* haps outright racial balancing. It
: rests upon the completely unreal
istic assumption that minorities
?; will choose a particular trade in
; ; lockstep proportion to their repre
sentation in the local population."
; : The ruling is expected to have
; far-reaching impact on the use of
: so-called set-aside programs by
? > states and cities.
Most states and more than 190
!? local governments have such pro
?- grams, according to a study by the
*: Minority Business Enterprise
;? Legal E)efense Education Fund.
? In California, a state laweffec
; tive this month requires all state
;; contractors to use best efforts to
subcontract at least 15 percent of
'I the project to firms controlled by
\ minorities and 5 percent to firms
controlled by women.
* Deputy Attorney Cdftferal Mari
an Johnston said that the law dif
:J"fers from the Richmond program
in one important respect: "Itestab
*1; lishes goals, not monetary require
:j ? ments." But she said today's ruling
'^-whether it would invalidate the
state measure.
? Attorney John Findley of the
Pacific Legal Foundation said the
high court's ruling could apply to
the California law because the
state, like Richmond, has not jus
? tifled the law with findings of past
;? discrimination.
> 'This is not a response to past
? discrimination. This is pure pork
>' barreling," said Findley, whose
>? suit last year challenging the law
J: on behalf of the Associated Gen
eral Contractors of California was
/ ; dismissed as premature. He said
>: the suit is likely to be revived.<
The high court in recent years
has upheld key affirmative action
programs in other areas, although
< always by narrow margins and
v. with no clear consensus on how to
evaluate their lawfulness.
In a stinging dissent today, Jus
tice Thurgood Marshall said the
Richmond ruling "marks a delib
erate and giant step backward in
this court's affirmative action
jurisprudence. Cynical of one
municipality's attempt to redress
the effects of past racial discrimi
nation in a particular industry, the
majority launches a grapeshot
attack on race-conscious remedies?
in general."
MarshaH said the "harsh reality"
of today's ruling will be to dis
courage or prevent cities and
states from "acting to rectify the
scourge of past discrimination."
He was joined by Justices
William J. Brennan and Harry A.
Blackmun.
O'Connor drew a distinction
between Richmond's plan and one
enacted by Congress that the court
upheld in 1980. The congressional
plan required 10 percent of federal
public works contracts be ear
marked for minority-controlled
businesses.
, O'Connor said Richmond offi
cials are not entitled to rely on a
finding by Congress that there has
been nationwide discrimination in
the construction industry.
Also, O'Connor said, the con
gressional serast^ excusediocai
governments from complying
under certain conditions.
Finally, she said, Congress has I
unique powers "in making a find
ing that past discrimination would
cause federal funds to be distribut
ed in a manner which reinforced
prior pattenrs of discrimination."
"While the states and their sub
divisions may take remedial
action when they possess evi
dence that their own spending
practices are exacerbating a pat
tern of prior discrimination, they
must identify that discrimination,
public or private, with some
specificity beforr than may use
race-conscious relief," she said7
The Richmond plan was chal
lenged by building contractor J.A.
Croson Co. after it lost a city con
tract to install stainless steel uri
nals and water closets at the city
jail. Croson did not include a
minority-owned business as a sub
contractor.
Richmond officials adopted the
affirmative action plan in 1983.
While the jrninori ties named in the
plan included Hispanics, Orien
tals, Indians, Eslcimos and Aleuts,
the primary beneficiary would
have been blacks.
Richmond's population is about
half black. But the city's minority
owned businesses historically
received less than 1 percent of the
value of the city's public building
contracts.
This ruling upheld a decision by
the 4th U.S. Circuit Court of
Appeals based in Richmond.
A coalition of groups represent
ing local and state governments
had said striking down the Rich
mond plan would reopen old
wounds and discourage affirma
tive action if it means govern
ments first must admit past dis
crimination before adopting reme
dial programs.
The case is Richmond vs. Cro
son, 87-998.
| Speaker
From Page A2
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To overcome the fear and dis
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Anna Perez, 37, a press aide to Rep. John Miller, R-Wash.,
recently confirmed that she will become first lady Barbara
Bush'rpress secretary.
Thursday, January 26, 1989
Winatno-S&km Chronicle
Page A3
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