How Far Can Congress Go?

High court considers another affirmative-action program

For the third time in two years, the Supreme Court is deciding a major reverse discrimination claim. The issue this time is not the permissibility of racial quotas for professional school admissions (as in the Bakke decision of 1978) or of company job-training programs (as in last summer's Weber ruling), but of a congressional award of a share of federally financed local public works contracts to minority-controlled businesses. The case, on which the nine high court Justices heard oral arguments last week, should help to further define the still murky limits to which affirmative-action programs may go in redressing racial imbalances.

The case, called Fullilove vs. Kreps, focuses on a 1977 federal law authorizing grants to local governments for public projects with $4 billion to be allocated by Dec. 31, 1978. Noting that minority-controlled companies had been getting only 1% of all Government contracts, Maryland Democrat Parren Mitchell proposed an amendment guaranteeing such firms 10% of the $4 billion. The amendment passed, to the distress of the construction industry. All told, 27 suits were filed charging that the 10% set-aside was unconstitutional. Fullilove, the case that the Supreme Court chose to hear, was brought by H. Earl Fullilove and other officials of several New York contractors' associations. For them, it had been a rocky road to Washington: two federal district courts had upheld the program.

In last week's arguments, the plaintiffs' lawyers maintained that the 10% set-aside was wrong because Congress should order quotas only when it had made "detailed findings" of past discrimination, which it had not done in the case of construction contracts. Moreover, they insisted, the size of the set-aside itself was arbitrary. "Why 10%?" asked one of the attorneys. "Why not 4%--the number of black contractors in the United States?" Fullilove himself is fearful about the lack of restraint on quota setting. A 10% set-aside might conceivably be tolerable, he says, but the problem is that "next time around it might be 15% or 25%."

Arguing for the Government, Assistant Attorney General Drew Days maintained that Congress had no need to provide a detailed justification for the 10% set-aside, since it had "unique competence" to right past wrongs as it saw fit. Although the Government had been trying to help minority businesses in various ways for ten years, going back to the Nixon Administration's "black capitalism" campaign, Days said, "Congress concluded that these measures simply had not worked," and that quotas therefore were necessary.

As a principle, affirmative action has four apparently solid votes on the court, at least if Bakke and Weber are a guide: Justices Brennan, Marshall, White and Blackmun. The decisive fifth vote might depend on the particular facts of this case. Constitutional Scholar Laurence Tribe thinks this vote could be attracted by the fact that the set-aside is "more of a carrot than a stick" to help minorities.

While the court will have to rule on the program's constitutionality, there is no dispute about its effectiveness: minority-controlled construction firms eventually garnered not just 10% but 19% of the Government's $4 billion in public works contracts.

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