Affirmative Action Case Elicits Mixed Reaction on Thorny Issue

Already split over the contentious issue of affirmative action, Jewish groups have expressed mixed opinions about this week’s Supreme Court ruling.

In a landmark decision that is certain to heighten debate over affirmative action policies, the court ruled that the government must hold such programs to strict standards when determining whether they discriminate against non- minorities.

The 5-4 decision in Adarand vs. Pena comes as members of Congress, states and the Clinton administration are re-examining the 25-year-old initiative.

Some Jewish groups hailed the decision, saying it cast doubt on the future of “set asides” and other racial classification that cater to minorities.

Others expressed disappointment. Still others took a “wait-and-see” attitude, saying it was too soon to tell what the mandate would mean for affirmative action.

The case involves a white-owned subcontractor, Adarand Construction, which sued when the company lost a highway construction job to a minority contractor, Gonzales Construction, of Colorado, received a$10,000 bonus when it chose Gonzales as its subcontractor.

In the ruling issued Monday, the court said federal programs that classify people by race were presumably unconstitutional unless the government could prove “a compelling interest” to make those classification.

Those programs must be “narrowly tailored” to show evident past discrimination, said Justice Sandra Day O’Connor, writing for the majority.

“All governmental action based on race should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed,” O’Connor wrote.

Chief Justice William Rehnquist and Justice Antonin Scalia, Clarence Thomas and Anthony Kennedy joined O’Connor in the majority decision, which sent the case back to the lower courts to review, using the new standard.

Justices John Paul Stevens, David Souter, Ruth Bader Ginsberg and Stephen Breyer dissented.

Because the new standard has yet to be applied, what specific programs will be affected is not clear, said Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism.

He said even though Jews are usually not considered disadvantaged minorities, some communities, such as the Chasidim and Jewish women, have benefited from affirmative action programs.

Although the center has not taken a formal position on the ruling, Saperstein called it “disappointing.”

“I see this as an affirmation of affirmative action, but a limitation of the circumstances where it is appropriate to apply it,” he said, adding that he was “confident” that most programs could be tailored to meet the court’s standards.

In contrast, the Anti-Defamation League welcomed the decision.

In a statement, ADL’s national director, Abraham Foxman, and national chairman, David Strassler, said the court has finally recognized what ADL has been arguing for nearly 20 years: that “government preference or benefits based upon race, religious beliefs or ethnic origin are as threatening to the American ideal as the historic discriminatory practices used to justify those preferences.”

The American Jewish Congress, which supports affirmative action in certain circumstances, said the court’s decision echoed the group’s position that affirmative action should “neither be routinely applied nor always forbidden.”

But AJCongress said, it is “a mistake to think that this decision spells the doom of affirmative action.”

The National Jewish Community Relations Advisory Council, which did not take an official stand on the ruling, agreed that the decision did not pound the first nail in affirmative action’s coffin.

“They didn’t strike down” the program, said Karen Senter, co-director for domestic concerns at NJCRAC.

Last month, NJCRAC, an umbrella organization of 13 national agencies and 117 local community relations groups, reaffirmed an affirmative action policy the group first adopted in 1973.

That policy supports affirmative action remedies to racial imbalance in both the government and private sector. But it opposes the use of quotas as “inconsistent with the principle of non-discrimination and the goal of equal opportunity.”

Senter said she disagreed with those, such as ADL, who said the decision cast doubt on affirmative action’s future.

Those who reached such a conclusion “are making a rash judgment,” Senter said, calling such statements “wishful thinking” on the part of those who want to dismantle the programs.

What the case does, Senter said, is show that people are looking at affirmative action programs to ensure they accomplish what they are supposed to.

For some, the court’s ruling was not a surprise.

“It was clearly within the realm of expected possibilities,” said Marc Stern, AJCongress’s co-director of legal affairs.

However, he said, the decision changes the landscape of the affirmative action debate, setting it against a legal background.

“Because the court imposed stricter standards on the use of race by government, it’s going to legalize the debate,” he said.

What remains to be seen, he said is whether government programs will be able to survive the court’s tough guidelines.