By William Perry Pendley

On July 19, President Clinton announced the results of what began last February 23 as an “intense, urgent review” of affirmative action. It had all been for naught. The Washington Post characterized Clinton as ”moving back to the liberal side of the divide” with “a full-throated endorsement of government (racial) preference programs.”

Clinton began the review five weeks and two days after oral arguments before the Supreme Court in the landmark affirmative action case  Adarand Constructors, Inc. v. Pena. The results of that review followed, by exactly the same period, Justice O’Connor’s Adarand opinion on June 12.

The Supreme Court ruled that the Constitution requires the Court to apply the same standard in considering race-based decision making, regardless of the unit of government, whether federal, state, or local. That standard, held the Court, is one of “strict scrutiny,” a test requiring the government to demonstrate a “compelling governmental interest” in using race and “narrow tailoring in achieving that interest.

The Court’s decision in Adarand overturned its 1990 decision in Metro Broadcasting v. Federal Communications Commission, where the Court upheld the ability of Congress to use race to award television broadcast licenses. The Court also reversed its 1980 decision in Fullilove v. Klutznick, where it first held Congress could use race as a factor in awarding government contracts. Those decisions, which applied a much more lenient standard to race-based decision making by Congress, were the basis for earlier rulings by the Colorado federal district court and the U.S. Court of Appeals for the Tenth Circuit against Adarand. The Supreme Court vacated those rulings and remanded the case for a decision consistent with its Adarand holding.

Justice O’Connor, writing for the Court declared: “Despite lingering uncertainty in the details, however, the Court’s cases . . . established three general propositions with respect to governmental racial classifications. First, skepticism: ‘[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination’. . . . Second, consistency: ‘the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification’. . . . And third, congruence: ‘[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment’ . . . .

Concluded Justice O’Connor: “Taken together, these three propositions lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny.”

The Supreme Court’s decision, as to what the Constitution’s guarantee of equal protection means, shifts the burden of ensuring federal adherence to the Constitution to Congress and President Clinton. Unfortunately, Clinton, presented with a unique opportunity to move toward a new day in race relations in America, took a giant step backward.

Despite Adarand’s incredible victory, Adarand’s operator, Randy Pech, finds himself back where he began nearly five years ago. In fact, just days before the Supreme Court’s decision, Pech lost yet another contract as a result of his race–something that happens with regularity. Pech must now return to federal court in Colorado and battle the nation’s largest law firm: the U.S. Government. There is no doubt, given Clinton’s announcement, that federal lawyers will fight tooth and nail against Randy Pech and Adarand.

Thus the question before Congress, in light of its duty to the Constitution, is whether it should stand on the sidelines and leave it to people like Randy Pech to demonstrate that various race-based federal programs are unconstitutional, or whether Congress should stop funding programs of dubious constitutionality.

Despite the national rejoicing over the end to federal race-based decision making that the Supreme Court’s Adarand decision foreshadowed, there is serious question as to whether Congress has the courage to do the right thing. Perhaps during the August recess the American people will remind their representatives of what took place last November 8–and why!

William Perry Pendley was the President and Chief Legal Officer of the Mountain States Legal Foundation, a nonprofit public interest legal center.