The dozen years since the Supreme Court endorsed the concept of affirmative action have done little to quell the controversy over whether programs receiving federal money can take race into account when hiring, firing, promoting, deciding on school admissions or awarding benefits.
The Allan Bakke case fractured the court just as it did the nation. Failing twice to get into the University of California at Davis Medical School, Bakke, who is white, sued for reverse discrimination. He said the school denied him equal protection of law by setting aside a certain number of places for minority students who were admitted through a review process completely separate from whites.
With several justices writing separate opinions, the court in 1978 struck down the Davis program, but said schools and colleges could consider race along with other factors in the interest of enrolling a diverse student body.
Since then, the court has remained just as divided on the issue, establishing a hodgepodge of rules that are different for graduate school admissions than they are for work force reduction plans or for awarding government contracts.
Moreover, a ruling last year set a higher standard for state-sponsored affirmative action programs than for federal programs that take race into account. States must prove that race-conscious programs further a ”compelling state interest,” while federal affirmative action needs only a ”rational basis” for existing.
But that could change this spring when the justices decide whether to uphold two Federal Communications Commission policies that give minorities and women an advantage in securing broadcast licenses.
The rulings could well indicate whether the increasingly conservative court will use the 1990s to substantially clamp down on federal affirmative action efforts ranging from public works contracts to employee recruitment.
On the surface, the broadcasting cases represent a clash between constitutional guarantees of equal protection, as embodied in color-blind government policies, and 1st Amendment protections, whose vitality depends on a variety of groups being able to express their views over the public airwaves.
But underlying that debate is the fundamental question of whether affirmative action can be used only to help minorities in areas where they actively have been excluded or whether it can be justified for other reasons, such as to promote cultural diversity in fields dominated by whites.
The distinction is a fine one but important.
It is the difference between, for instance, allowing a law school to give special consideration to minorities because it once excluded them or allowing the school to consider applicants` race because the country has too few black and Hispanic lawyers.
The Federal Communications Commission policies at issue are the ones aimed at promoting ”program diversity” by increasing minority ownership of television and radio stations.
In Metro Broadcasting Inc. vs. FCC, the license to a new UHF TV channel in Orlando was awarded in 1984 to a company owned by three Hispanics, two of them women. Metro, which had one black among its nine male owners, challenged the decision, saying the other firm should not get extra points for having female and minority owners.
In Astroline Communications Co. vs. Shurberg Broadcasting, a Connecticut businessman who lost out on acquiring a Hartford TV station in 1984 challenged another FCC policy that gave minority-owned businesses a distinct preference in buying stations whose owners are about to lose their licenses.
The Bush administration opposes both policies, but the FCC is defending them on its own.
Supporters argue that Congress ordered the programs after determining that minorities are underrepresented in the broadcast media. Congress in 1987 also barred the FCC from using any appropriated money to reconsider the policies, and the agency dropped its review.
Congressional involvement could, in fact, determine whether the policies are upheld.
In 1980, the court gave Congress relatively broad affirmative action powers. Upholding a federal requirement that 10 percent of new grants for state and local public works projects go to minority-owned businesses, the justices said Congress did not need specific proof that blacks and other minorities had been wrongly denied public works contracts.
Last year, the justices specifically denied such broad powers to the states. In a ruling that struck down a plan in Richmond, Va., to set aside 30 percent of municipal building contracts for minorities, the court said the city must show it was guilty of past discrimination in the construction industry.
But even in that case, Justice Sandra Day O`Connor suggested that the Constitution gives the federal government and Congress broader powers than the states over racial matters.
Under that theory, said Georgetown Law Center professor Charles Abernathy, ”Congress might have some special ability to promote affirmative action where the states might not be able to.”
In the FCC-related cases, several of the Supreme Court justices clearly question whether ”program diversity” is a legitimate goal for government to pursue by using racial classifications.
Insisting that the FCC policies assume that people act certain ways because of their race, Justice Antonin Scalia asked during oral arguments in March, ”What other fields of public policy can we use that presumption in?” J. Roger Wollenberg, attorney for Astroline, the Connecticut firm that won the Hartford license but lost in an appeal by Shurberg to the U.S. Appellate Court in Washington, countered, ”People with particular kinds of blood, particular kinds of skins, have been treated differently over a period of time. Congress is trying to ameliorate that situation.”
Harry Cole, who represents Shurberg, argued, ”This court has never approved race-based classifications just because they might achieve some good or desirable goal.”
If the court focuses on the idea of ”program diversity” or the lack of evidence of discrimination in the broadcast industry, Congress might be able to come back with new affirmative action plans in this area.
But a ruling that dilutes Congress` authority to enforce affirmative action could affect a wider range of efforts.
”The impact depends not only on whether the government wins or loses, but on what basis it wins or loses,” said Steven Shapiro, associate legal director of the American Civil Liberties Union.
Whatever the outcome, however, the court is not expected to resolve the debate this time through, either.
”The questions are too complicated, and there`s too much division on the court for a simple answer,” said University of Chicago Law School professor Cass Sunstein.
