POLITICS APRIL 26, 1996
Great Supreme Court decisions, for all their theatricality, are notoriously weak engines of social change. The commands of Brown v. Board of Education weren't implemented until decades later; Roe v. Wade confirmed a trend toward the liberalization of abortion laws that had been percolating in the states. But, a year after it was handed down, Adarand v. Pena is proving to be a startling exception. Like a boulder thrown into a placid pond, Adarand has been sending ripples through the lower courts in ways that are already transforming affirmative action as we know it. A recent decision in Texas ventures to suggest that all affirmative action in higher education may be unconstitutional in light of Adarand. And a lawsuit in New Mexico is prompting the Clinton administration to reconceive its entire federal procurement policy, in the hopes of preserving racial set-asides on a more limited scale. What follows is an anatomy of the wages of Adarand.
Adarand, you'll recall, was a terse 5-4 decision last June, in which Justice Sandra Day O'Connor held that "all racial classifications, imposed by whatever federal, state or local governmental actor, must be analyzed by a reviewing court under strict scrutiny." Emphasizing that "benign" racial classifications should be viewed just as skeptically by judges as malignant ones, she hinted that affirmative action programs might be justified, under narrow circumstances, as a response to "the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country." And that, pretty well, was that: O'Connor refused to say what she thought about the racial classification at issue in Adarand itself, a federal set-aside for a Hispanic-owned guardrail company in Colorado that effectively prevented the only guardrail company owned by a white male in the state from placing bids.
O'Connor's silence was especially conspicuous on another point. She said nothing at all about the fate of the Bakke case, the landmark 1978 opinion by Justice Lewis Powell, which held that education is different than other spheres of state action, and therefore public universities are freer to resort to racial preferences than other state actors. But others are scrambling to interpret her silence. On March 18, the U.S. Court of Appeals for the Fifth Circuit struck down the affirmative action program adopted by the University of Texas law school and ordered university officials, under pain of punitive damages, to adopt a color-blind admissions process immediately. The law school faculty, eager to confront O'Connor with the radical consequences of the color-blind principle, is planning faithfully to implement the lower court's command and expects to admit a virtually all-white class in 1998. Meanwhile, the state is appealing to the Supreme Court; the Texas Attorney General has engaged Laurence Tribe to conduct the oral argument; and the case, if the Supreme Court agrees to hear it, has the potential to be one of the most significant decisions since Roe v. Wade.
Writing more as a pundit than a lower-court judge, Jerry E. Smith of the Fifth Circuit took it upon himself to predict the law rather than to apply it. In his freewheeling opinion, Judge Smith began by suggesting that, in the wake of Adarand, "the use of race to achieve a diverse student body cannot be a state interest compelling enough to meet the steep standard of strict scrutiny." Justice Powell in Bakke, of course, had held otherwise: he said that state universities could take race into account in admissions decisions to achieve the benefits of diversity or as remedy for past discrimination. According to Smith, however, Powell was freelancing: "Justice Powell's argument in Bakke garnered only his own vote and has never represented the view of a majority of the Court in Bakke or any other case." Moreover, Smith predicted, Powell's view that achieving diversity in higher education was a constitutionally compelling interest would not gain five votes on the Supreme Court today. Adarand, not Bakke, was the law of the land, said Smith, and, under Adarand, the Texas program could not stand.
There are many ways for lower courts to question affirmative action, but overruling Supreme Court decisions is not one of them. And, even if one indulges Smith's cynical attempt to count votes rather than to apply existing law, he is a clumsy vote counter. Smith is wrong, first of all, to suggest that Lewis Powell's decision in Bakke represented Powell's views alone: he overlooks Part V-C of Powell's opinion, joined by five justices, which holds that "In enjoining [the University of California at Davis] from ever considering the race of any applicant ... the courts below failed to recognize that the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin." In his Foreword to The Harvard Law Review the year Bakke was announced, John Hart Ely quoted this language and concluded: "That is the Opinion of the Court in Bakke. I'll take it."
As an oracle of tea leaves, Smith is also inept. On the current Court, at most four justices--Antonin Scalia, Clarence Thomas and, far more tentatively, William Rehnquist and Anthony Kennedy--have committed themselves to the proposition that the Constitution is color-blind in all circumstances. Four justices--Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens--have strongly hinted that they would, in the case of education at least, accept forward-looking justifications for affirmative action--such as diversity--as well as backward-looking justifications, such as racial compensation. Like most contested issues of social policy, therefore, the future of Bakke, and of affirmative action itself, rests on the cryptic impulses of Sandra Day O'Connor.
Divining Justice O'Connor's wishes is never easy, least of all for Justice O'Connor herself. But her previous writings about race and diversity look very similar to Powell's position in Bakke. (See "School Colors" by Akhil Amar and Neal Katyal, tnr, July 17 & 24, 1995.) In the Wygant case in 1986, O'Connor cited Powell for the proposition that "a state interest in the promotion of racial diversity has been found sufficiently `compelling,' at least in the context of higher education, to support the use of racial considerations in furthering that interest." Four years later, in the Metro Broadcasting case, O'Connor again cited Powell for the proposition that "race-conscious measures might be employed to further diversity only if race were one of many aspects of backgrounds sought and considered." Finally, in her tortured opinions in the voting rights cases, O'Connor has said that government can be race-conscious, as long as it's not too obvious about it.
Another consideration may save Bakke from the block. As their showy refusal to overturn Roe v. Wade suggests, O'Connor and Kennedy are inclined to uphold landmark precedents, even ones they think are wrong, when social expectations have crystallized around them. A vote to overturn Bakke, and to forbid all racial preferences in higher education, would be far more socially disruptive than a decision allowing each state to make up its own mind about abortion restrictions. The lower court found that the average grades and lsat scores of black and Mexican-American applicants are so much lower than those of other applicants that, without racial preferences, Texas could have admitted, at most, nine black and eighteen Mexican-American candidates, all of whom were being courted by the top law schools in the country. Extending the color-blind principle to all universities, in short, would precipitate resegregation on a national scale.
If one were determined to play Judge Smith's parlor game, and to predict how the current Supreme Court would decide the Hopwood case, the safest bet is that the opinion would look very much like Bakke itself. And Justice O'Connor would be in the Powell seat, refining Powell's anxious insistence that race can be used as a "plus factor," but not the "decisive factor," in admissions decisions, that it must be "simply one element--to be weighed fairly against other elements"--to achieve genuine, rather than cosmetic, diversity.
So let's assume that Bakke stands. The real drama of the Hopwood case is that the University of Texas's affirmative action program might still fall. Judge Smith, in other words, could have ruled against the university without presuming to overturn Bakke. Powell never specified the mystic point at which a benign "plus factor" became a malignant "decisive" factor; but he did stress that the search for racial diversity should not "insulate" minority candidates from "competitive consideration" with white candidates who might bring diverse perspectives of their own. And Hopwood tests the limits of Powell's euphemism. The gap between the test scores of white and black candidates is so stark that, to admit more than token numbers of minority candidates, race must be used not as a "plus factor" but as the decisive factor in case after case.
Smith is typically coarse in his attempt to apply the Powell distinction between genuine diversity and cosmetic diversity. In the search for students with diverse viewpoints, Smith suggests, race is no more rational a proxy for diversity "than would be choices based upon physical size or blood type of applicants." This stretches a familiar criticism past the breaking point: of course, African American students from all economic backgrounds share common experiences that type-O students do not, such as the lived reality of racial slights in America. But Smith's hyperbole masks another unsettling truth: if racial "plus factors" are not permitted to loom larger than other proxies for diversity, if Bakke is rigorously applied, then the entering class at Texas might be only slightly less white than a color-blind system would produce.
Of course, the real reason the Texas faculty, like most law faculties, supports affirmative action isn't primarily to encourage "viewpoint diversity," or even to atone for the law school's own dramatic history of discrimination in the 1940s. The faculty simply thinks it would be inconceivable to have a virtually all-white student body in the state's leading law school, excluding the state's two most numerous and most politically powerful minority groups from more than token representation. This is a perfectly defensible judgment, on educational as well as political grounds, especially if one sees law schools (unlike, say, chemistry graduate schools) as microcosms of democracy, where students should learn how to interact with the various groups they will encounter as lawyers and citizens. But the Supreme Court has rejected this mimetic or representational justification as "diversity for its own sake," and so Texas, unable to defend its program openly, is forced to tie itself in knots.
The Hopwood case suggests that universities wishing to defend their affirmative action policies in court will face an increasingly uphill battle--even if Bakke stands. As judicial scrutiny becomes more intense, and the distinction between "plus factors" and quotas is more rigorously enforced, entering classes may become more white than they are now. But the core principle of the Brown decision--education is different than other spheres of state action--will probably save affirmative action in higher education in some limited form.
Other forms of affirmative action, by contrast, may well be doomed in the new constitutional order. In particular, many of the racial set-asides in federal procurement, the largest federal affirmative action programs, are hard to reconcile with the cold logic of Adarand and are already beginning to be dismantled through a combination of judicial pressure and political backpedaling. Although the Clinton administration hopes to preserve the set-asides in a limited form, its most recent proposals are so elaborately legalistic that they may only hasten the set-asides' demise.
Like a retreating army, the Clinton administration has reacted to the Adarand decision by making a series of tactical concessions and then trying against the odds to hold its ground. The White House's retreat has been exemplified, and partly driven, by a little-noticed lawsuit in New Mexico, McCrossan v. Cook. The population of New Mexico is about 50 percent non-white, and yet the Department of Defense, in its effort to satisfy national "goals" set by the Small Business Administration, has set aside virtually all of its road-building contracts at the White Sands military base, the largest military base in the country, for minority-owned construction firms. This is racial pork-barrel of the crudest kind. Faced with certain defeat in court, the Clinton administration announced last October that it would repeal the set-aside in question, the so-called "rule of two," under which contracting officers can limit bidding on particular contracts to minority firms only. But, in an odd hat trick, the administration then announced that the Department of Defense would continue to set aside the same contracts for the same minority firms under a panoply of different federal preference programs, most notably the so-called 8(a) program, which it was determined to preserve. On April 2, a federal judge in Las Cruces, denying a motion for a preliminary injunction, suggested that the 8(a) program "may survive strict scrutiny as articulated in Adarand." He was wrong.
8(a) is the grandmother of all federal and state set-aside programs. In 1994, it accounted for about $4.9 billion, or 2.7 percent, of all government procurement. Created by Congress in 1978, it covers everything the federal government buys and builds--from paper in Boston to plastic pens in Idaho to military bases in New Mexico; and it allows federal agencies, through the Small Business Administration, to set aside contracts involving less than $3 million for businesses controlled and operated by "socially and economically disadvantaged persons." These are defined, by statute and regulation, to include black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, Subcontinent Asian Americans and women.
The 8(a) set-asides, which the Clinton administration defends, are analytically indistinguishable from the "rule of two" set-asides, which the administration repealed. Both programs insulate certain racial groups from "competitive consideration" with other racial groups, using race as the decisive factor rather than as a plus factor in assigning public benefits, thus violating O'Connor and Powell's central distinction. And both programs are employed to meet federal "goals" that have no connection to discrimination suffered by particular minority groups in particular regions of the country.
Because the federal government makes no attempt, in establishing its annual "goals," to account for the availability of minority firms in a particular industry or geographic location, the only way for agencies to meet their goals is to concentrate their minority contracting in certain fields, such as construction, where minority-owned firms actually exist. In ten states, as Clinton's affirmative action task force acknowledged last June, more than 40 percent of all construction contracts awarded to small businesses went to minority businesses, often under sheltered competition. At some sites, such as the White Sands military base, virtually all contracting is with minority businesses. For the white male proprietors who are shut out entirely from the bidding process, it's hard to imagine a more intrusive burden.
Tacitly acknowledging that the 8(a) program, in its current form, can't survive close judicial scrutiny, the Clinton administration is about to make an elaborate attempt to save it. Piecing together the precise contours of the administration's unpublished proposals is difficult--they were misleadingly reported in last month's New York Times--but Associate Attorney General John Schmidt told me that under the new rules, "if any agency is going to go beyond outreach, if they're actually going to use race as part of decision-making, they would have to observe limits determined market by market, industry by industry." For each national and regional market in which the federal government does business, Schmidt told me, the Office of Federal Procurement policy would make an "estimate of what level of contracting you would have achieved in the absence of discrimination." By examining Census data showing the numbers of minority firms in each market, the federal procurement office would set "benchmarks" for the percentage of minority firms that should be awarded contracts; but Schmidt said the benchmarks could be "adjusted upward if there is some evidence that discrimination has suppressed the availability of minority firms in that industry." A blue-ribbon commission--the Council of Economic Advisers has been suggested--would certify that, in the absence of discrimination, 25 percent of all construction dollars in Colorado, for example, would have been awarded to minority firms. The Department of Defense could then set aside no more than 25 percent of its Colorado construction dollars for minority firms in sheltered competition.
Schmidt is the president's lawyer, not his policy adviser, and he deserves credit for honestly trying to craft the most carefully tailored defense of racial set-asides that a lawyer could devise. Moreover, the broad categories of set-asides are mandated by Congress; and, until Congress repeals the set-aside laws, the president is constitutionally required to enforce them. Legally as well as politically, however, the president's decision to mend, not end, federal set-asides is a serious mistake. The entire project is doomed by a simple truth: the Supreme Court will only uphold federal racial set-asides in light of convincing evidence of past discrimination by the federal government itself; but, for almost twenty years, the federal government has been discriminating in favor of minority contractors rather than against them. Minority firms, furthermore, are only eligible for set-asides during the first nine years of their existence. All the current beneficiaries are companies formed after 1987, which makes the claim that they have suffered from statesponsored discrimination especially implausible.
Furthermore, when the numbers are examined honestly, minority businesses turn out to be overrepresented, rather than underrepresented, in federal procurement. In 1994, 25 percent of all federal dollars awarded to small business went to minority businesses, although minorities own 9 percent of businesses in the country. The administration tries to conceal this number by emphasizing that only 4.1 percent of all federal procurement dollars went to minority businesses, but this is the wrong comparison. Most procurement dollars go not to small businesses but to huge Fortune 500 companies, such as Lockheed and Exxon, that have no ethnic corporate identity but are owned by shareholders of all races.
The administration proposes an empirical project of staggering complexity and expense; but, to convince the Supreme Court, the project would have to be far more complicated still. For the past five years, many states and cities have been commissioning what are now called "disparity studies," based on Justice O'Connor's suggestion in the 1989 Croson case that "where there is a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of contractors actually engaged by the locality or the locality's prime contracts, an inference of discrimination could arise." So far, more than 100 studies have been completed, at an estimated cost to taxpayers of $45 million.
As George R. LaNoue of the University of Maryland has shown, disparity studies have proved to be so unreliable that they have failed to convince any court to uphold a set-aside program. Many disparity studies are tendentious enterprises, more like bad opinion journalism than rigorous empirical analysis, in which advocacy groups are paid to conduct anonymous interviews and collect anecdotes to support the conclusion that minority groups and women in a particular area feel victimized by ethnic and gender slights. ("One MFE [Minority Female Enterprise] asserted that as a woman, the biggest obstacle she has had to overcome was that people did not take her seriously," reports an Ohio study. "She had to demand respect.") The prospect of the federal government spending millions of dollars to encourage citizens in every state to enumerate their racial and sexual discontents could ignite the most toxic elements in our civic culture.
The Clinton proposal promises to repeat many of the errors that, according to LaNoue, have doomed disparity studies in the past. Instead of comparing the numbers of qualified, willing and able businesses that have actually bid for particular contracts, the administration would rely on Census data that show the gross numbers of minority-owned firms in each particular market. But these numbers say nothing about a particular firm's ability to carry out a particular job at any point in time. And the administration defines industries and markets too broadly. Instead of examining minority firms' ability to perform "a particular service," to use O'Connor's words, the administration plans to lump a host of services, from roof-building to road-making, into the amorphous category of "construction," and create state-by-state "construction industry" goals. But court decisions make it clear that evidence of discrimination against Pakistani janitors can't be invoked to justify preferences for Hispanic guardrail makers.
To convince Justice O'Connor, the administration would have to undertake a breathtaking empirical task indeed: looking for evidence of discrimination against each group or sub-group included in the current set-aside program for each service that the federal government purchases in every state in the nation. But the Justice Department has decided not to do this. In practice, of course, there simply isn't evidence of systematic discrimination against many of the groups on the federal list. In the 1980s, bowing to successful lobbying, the Small Business Administration decided to add a slew of recent immigrant groups to the list, such as Asian Indians, Tongans and Indonesians. None of them has been here long enough to be the victim of historical discrimination.
The most dubious element of the administration's proposal is its plan to adjust its "goals" upward by calculating the number of potential minority firms that would have existed in a particular market, but for discrimination. This is a metaphysical, not an empirical, figure, and no state has convincingly calculated it. In a Texas case, for example, the state tried to suggest that low percentages of self-employed minorities, and high percentages of discrimination lawsuits filed, might indicate that minority business formation had been suppressed by discrimination. But the General Services Administration refused to accept the claim, conceding that business formation may be affected by cultural factors that have nothing to do with discrimination, such as some women's desire to have families, or the industriousness of certain recent immigrant groups, such as Koreans or Armenians.
In the end, the Clinton administration's effort to save the procurement set-asides is as strained as the University of Texas's defense of its own affirmative action program, and necessarily so. The real reason Congress created the set-asides in 1978, and the reason the administration defends them today, is because of a sense that it would be politically embarrassing to have a national procurement system that included very few companies owned by minorities. But avoiding embarrassment is not a public purpose that the Supreme Court has recognized as compelling. And, at this point, the costs of defending the federal set-asides have grown far more embarrassing than the costs of repealing them.
Perhaps a year from now the fate of affirmative action will look less precarious than it does today. Perhaps five justices will decide that diversity for its own sake really is an important state interest after all; perhaps President Clinton will have another term and another Supreme Court appointment; or perhaps the Council of Economic Advisers will uncover dramatic new evidence of discrimination against Kansan Aleuts. But, at this anxious, transitional moment, the hydraulic force of the Adarand decision is calling into question much of affirmative action as currently practiced. For better or worse, there is an unbreachable gap between the justifications for affirmative action that the Court is willing to accept and the real reasons the programs are adopted. The lawyers call this "bad tailoring," but it is hardly a cosmetic issue. It means that the most important transformation of racial politics since the civil rights era is being presided over by Sandra Day O'Connor.