Is Affirmative Action Still the Answer?

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Overview

The Supreme Court is taking a “giant step backward,” Justice Thurgood Marshall bitterly asserted. But his protest last January was to no avail. By a 6–3 vote, the court ruled unconstitutional a Richmond, Va., ordinance setting aside 30 percent of the city's public works contracts for minority-owned firms. Only where a state or local government was trying to rectify the effects of “identified discrimination” might “some form of narrowly tailored racial preference” be necessary, Justice Sandra Day O'Connor wrote for the court's majority. Thirty-six states and 190 cities and counties had minority set-aside programs similar to Richmond's, and many of the governments have begun to re-examine them in the light of the court's decision.

Less than a week before its ruling in City of Richmond v. J. A. Croson Co., the Supreme Court heard arguments in Wards Cove Packing Co. v. Frank Atonio et al., an employment discrimination case that could be “very significant,” according to William L. Robinson, dean of the District of Columbia School of Law and former director of the Lawyers' Committee for Civil Rights Under Law. A crucial issue that could be resolved by the court's ruling in this case is whether an employer whose practices have had a statistically “disparate impact” on minorities must prove (as he has in the past) the “business necessity” of his practices, or whether he must merely produce some evidence that the practices serve a legitimate business interest. If, as many anticipate, the court lifts the heavier burden of proof from the employer, the result, in Robinson's view, will be “to insulate the informal discriminatory practices which occur so frequently.”