Archive for Tuesday, June 24, 2003

Ruling affects more than schools

June 24, 2003


— The Supreme Court's decision Monday narrowly upholding affirmative action clarified the law on the use of race in university admission decisions -- just enough to ensure years of future lawsuits over how the ruling will be implemented, and whether people other than school administrators ought to pay attention to it, observers on both sides of the issue said.

Civil rights groups said the ruling offers a road map to universities to construct affirmative-action programs, and new life to some older plans. Among the latter: an affirmative-action program at the University of Texas that was struck down by a federal appeals court. Popular initiatives, such as California's Proposition 209, are also likely to come under scrutiny.

Affirmative-action opponents -- who had seen the two University of Michigan cases decided Monday as a once-in-a-generation chance of winning a high-court mandate against the practice -- are regrouping but say they see plenty of opportunity to attack affirmative action in individual cases.

The rulings could also have a bearing outside the schoolhouse doors, for example, nudging private employers toward wider acceptance of affirmative-action policies in hiring, training and promoting workers.

The court's majority opinion favorably cites the experience of large corporations that have embraced affirmative action. And it states for the first time that an interest in "diversity" alone could be enough to justify giving advantages to members of one race over another, absent strict quotas. In the past, such preferences were considered justifiable only where there was evidence of prior discrimination.

"I would view (Monday's ruling) as moderately improving the outlook for a private employer or even a state employer that wanted to justify an affirmative-action program," said Leon Dayan, a Washington labor lawyer. "This case allows employers to put forward other rationales" beyond having to show that affirmative action was needed because minorities were under-represented in the work force.

An employer operating in an area where the labor pool was overwhelmingly white could now make a legally defensible argument for an affirmative action plan to achieve the benefits of having a diverse workforce, Dayan said.

Other lawyers said municipalities without histories of discrimination now looking to boost the ranks of minorities could well benefit from the ruling. Donald Livingston, another labor law expert in Washington, said proponents of affirmative action for fire and police departments may be emboldened by the court's ruling because they can now argue that racial diversity is important to their mission of dealing with the public.

Even opponents of affirmative action acknowledged the decision could have broad consequences.

"Whenever the Supreme Court acts, even within the narrow confines of a decision pertaining only to education, there are going to be residual, spillover effects," said Peter Kirsanow, a member of the U.S. Commission on Civil Rights, and an affirmative-action critic.

At the very least, he said, corporate lawyers are likely to urge clients to look to the Michigan cases for guidance in constructing affirmative action programs.

But other lawyers cautioned that care should be taken not to read too much into the opinion. One of the most contentious areas in the affirmative action arena in recent years has been the practice of government agencies setting aside contracts for minority or disadvantaged groups. The Supreme Court put strict limits on the practice in a 1995 ruling, and the court indicated in its ruling Monday that it was not easing those limits.

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