Minority Quotas Curbed by Court : Preference on Contracts Banned Except to Make Up for Clear Bias

WASHINGTON â€”  The Supreme Court, dealing a blow to affirmative action programs, ruled Monday that city and state officials may not steer contracts toward blacks and other minorities, except to make up for a clear history of discrimination.

The 6-3 ruling strikes down a Richmond, Va., plan that guaranteed blacks and other minority members at least 30% of that city’s construction contracts.

The ruling casts doubt on laws in 36 states, including California, as well as those in hundreds of cities that set quotas or give preferences to minority members in bidding for contracts.

Justice Sandra Day O’Connor, writing for the court, said that the Constitution’s guarantee of “the equal protection of the laws� forbids government discrimination against whites as well as blacks.

“The dream of a nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost,� O’Connor said, if city and state politicians were permitted “to create a patchwork of racial preferences.�

In the past, the high court had been more tolerant of government programs enacted for the benefit of blacks and members of other minorities. Now, the five-member conservative majority says that it will carefully examine such affirmative action plans and strike down those casually imposed without firm evidence of past discrimination.

Monday’s ruling has no effect on affirmative action by private employers. In rulings based on federal employment laws, the justices have upheld voluntary affirmative action in the workplace. Neither does O’Connor’s opinion affect minority preference plans imposed by the federal government because, as she noted, Congress has more power than the states under the Constitution to remedy racial discrimination.

O’Connor said that, to justify its affirmative action plan, a city or state must show that minority members were actually excluded from participation in the relevant business. Mere statistics will not suffice, she said.

Less than 1% of Richmond’s construction contracts had gone to blacks in the previous five years, even though half of its residents were black. But O’Connor said that, because the City Council had not investigated how many blacks were in the construction business, it is “sheer speculation� to say how many blacks should have received those contracts.

“This makes it more difficult. But it doesn’t close the door� for affirmative action, Barry Goldstein, a lawyer for the NAACP Legal Defense Fund, said. “I think each locality needs to reconsider its set-aside program. But I also think an enormous number of them will be able to come up with the evidence to justify it.�

Since the 1978 Bakke case, in which the court first took up the question of when affirmative action becomes reverse discrimination, the justices have walked a zigzag line. In a series of splintered opinions, they have upheld affirmative action in some instances and struck it down in others.

The latest pronouncement again fails to give a clear answer to the legality of affirmative action. Three justices added concurring statements, along with two dissenting opinions, yielding a total of 97 pages to decide the case (Richmond vs. Croson Co., 87-998).

But O’Connor seems to have fashioned a moderate conservative stance that will uphold affirmative action in limited circumstances.

In something of a surprise, conservative Chief Justice William H. Rehnquist and Justice Byron R. White joined her statement giving cities and states the power to undertake affirmative action.

“If the city could show that it had essentially become a passive participant in a system of racial exclusion practiced by elements of the local construction industry, we think it is clear that the city could take affirmative steps to dismantle such a system,� she wrote.

Three liberal justices--William J. Brennan Jr., Thurgood Marshall and Harry A. Blackmun--support affirmative action in nearly every instance and were the dissenting votes in this case.

Meanwhile, conservative Justices Antonin Scalia and Anthony M. Kennedy, who said in concurring opinions that they oppose affirmative action in nearly every instance, agreed with O’Connor’s statement that racial classifications in law are “highly suspect� and should be employed only as “a last resort.� Justice John Paul Stevens also wrote a concurring opinion.

O’Connor said that Richmond’s law was particularly troublesome because it was a “rigid quota� imposed by a city council on which five of the nine members were black. The J. A. Croson Co., a white contractor, was the low bidder on a contract to do work at the city jail but lost out when it was unable to find a minority subcontractor to work with it.

In dissent, Marshall--the high court’s only black member--called the ruling “a giant step backward� that will make it more difficult for the nation “to rectify the scourge of past discrimination.�

“I never thought I would live to see the day,� added the 80-year old Blackmun in a separate dissent, “when the city of Richmond, the cradle of the Old Confederacy, sought on its own, with a narrow confine, to lessen the stark impact of persistent discrimination. Yet this court, the supposed bastion of equality, strikes down Richmond’s effort as though discrimination had never existed or was not demonstrated in this particular litigation.�

In a law that took effect on Jan. 1, the California Legislature set a “goal� of awarding 15% of all state contracts to members of minorities and 5% to women.

“It’s too early to say what effect this opinion will have on us,� said Marian Johnston, a deputy attorney general in Sacramento. “Our program just went into effect and our system works differently, so, hopefully, that will make it more defensible.�

However, Ronald A. Zumbrun, president of the Pacific Legal Foundation in Sacramento, said that the state had no basis for imposing its plan and predicted that it will be struck down.

In other actions Monday, the court:

--Ruled unanimously that foreign governments generally are immune from civil suits in U.S. courts. The justices overturned an appeals court ruling from New York which had concluded that a shipping company could drag the Argentine government into a U.S. court in an effort to make it pay for damage to a freighter during the Falklands Islands War (Argentine Republic vs. Amerada Hess, 87-1372).

--Dismissed a Los Angeles attorney’s challenge to a California state bar policy banning lawyers from running advertisements with testimonial accounts by satisfied clients. The bar association has said that such ads are inherently misleading. Attorney Mark H. Oring said the policy had violated his free speech rights, but the court dropped the case (Oring vs. California, 87-1224) because the issue had not been “properly presented� in the lower courts.