The misguided social policy known as "reverse discrimination" seems to be rolling along in reverse these days. Defenders of racial set-asides and preferences still have political power, notably in Bill Clinton's Oval Office, but from Florida to California their power steadily wanes.
The retreat was in motion long before the Supreme Court acted in June, but it has accelerated in recent weeks. On July 5, the U.S. Court of Appeals for the 9th Circuit squashed a preferential program in California's public utilities. On July 27 the Los Angeles County Superior Court condemned racial and gender discrimination in the metropolitan transportation system. Meanwhile, under pressure from California's Gov. Pete Wilson, the state's colleges and universities abandoned a policy of racial favoritism in admissions.Three decisions of the Supreme Court have altered the landscape. On June 12 the court turned a cold eye on racial set-asides in federal contracting. That same day saw the court apply its brakes to the bizarre situation in the public schools of Kansas City, Mo. On June 29 came the dramatic decision curbing racial gerrymandering in the drawing of districts for election to the House.
It is easy to read too much into the sequence of opinions. Taking them one at a time:
1. In Adarand vs. Pena, a Colorado contractor challenged a federal regulation that rewards prime contractors for throwing business to subcontracting companies owned by "socially and economically disadvantaged individuals." Ada-rand was low bidder on a contract for guard rails; the contract went instead to Gonzales Construction Co. because Gonzales is Hispanic.
2. In Missouri vs. Jenkins, the high court rebuked a lower trial court for exceeding its authority. The U.S. District Court had effectively imposed $1.4 billion in taxes upon the state to pay for a grandiose program of local school construction. The taxing decree led to per-pupil expenditures of $9,412, without notable evidence of increased integration or enhanced academic performance.
3. In Miller vs. Johnson, the court invalidated a redistricting plan adopted by Georgia in 1992. Three predominantly black districts had been created with but one purpose: virtually to assure the election of blacks to the U.S. House of Representatives. It is permissible, said the court, for the states to consider racial factors in drawing boundary lines, but such factors cannot be the only factors that count.
Jeffrey Rosen, writing in The New Republic, says the Kansas City decision is the most important of the three: Its effect may be to speed up the final disposition of desegregation cases that have been languishing on federal dockets for 30 years or more.
My own thought is that the Adarand decision is the most significant. It will put an end to all but the most carefully tailored state and federal laws according minorities special preference. District judges must now examine set-asides and "goals" under a standard of strict scrutiny. Do these programs serve a "compelling" need? If not, out they go.
It is important, it seems to me, to understand what the Supreme Court has NOT done in this troubled constitutional field. The court may have undermined a 1980 opinion upholding racial preferences in federal contracting, but it has not flatly overruled that regrettable decision. The court has not barred race altogether in congressional redistricting. It has not retreated from basic principles in school desegregation.
But the high court (or at least a fragile majority of the high court) has taken some heartening steps toward the ultimate goal of a color-blind Constitution. High time, I say, high time.