The affirmative action deathwatch.

Adarand case returns to Supreme Court

This may be the "end it" moment advocates of affirmative action have been dreading. In September, the U.S. Supreme Court will once again hear arguments from Adarand Constructors Inc. that challenge the special treatment given to socially and economically disadvantaged enterprises in government contracting.

For almost 10 years, the Colorado-based highway construction company has been fighting the Subcontractor Compensation Clause (SCC) Program of the U.S. Department of Transportation. The clause allows a prime contractor to receive additional compensation flit hires a contractor that is classified as a "disadvantaged business enterprise" (DBE).

In 1989, Adarand lost a Department of Transportation (DOT) subcontract despite having submitted the lowest bid. The prime contractor instead chose a minority, owned firm, and in return received a monetary bonus from the DOT.

Adarand sued, arguing that the use of a race-conscious presumption in determining who is a socially and economically disadvantaged individual for purposes of the SCC violated its Fifth Amendment equal protection rights.

In a 1995 appeal, the Supreme Court ruled that government racial preference programs were constitutionally suspect. In response, the Clinton administration made efforts to "mend" them, enforcing "strict scrutiny" of DBEs. And last fall, the 10th U.S. Circuit Court of Appeals upheld that those revisions were indeed constitutional.

The current case argues that the program, under which the Department of Transportation now aims to give 10% of all contracts to disadvantaged businesses, is still unconstitutional.

The Clinton administration, which claimed to be in favor of affirmative action, attempted to "mend it" so as not to "end it" (affirmative action). Now that this infamous case is up to the Bush administration, some are nervous.

"I think the Supreme Court is saying it does not necessarily agree with the 10th Circuit's interpretation and may narrow the program even further," says Charles Payne, who served as general counsel to the Small Business Administration during the Clinton administration.

In a March appearance on NBC's Meet the Press, Attorney General John Ashcroft said, "Obviously, I will defend the Department of Transportation's regulations." But mum's the word, for now. A Justice Department spokeswoman, citing policy, declined to comment on the case.

Payne finds Ashcroft's silence disturbing. "He should be commenting and he should be defending these programs," says Payne. "In the previous administration, the department worked to save affirmative action and defended it in the courts."

Despite Ashcroft and Bush's outward lack of support for affirmative action, some business owners are optimistic. "I am nervous but hopeful," says Charles Jones, business owner and CFO of NBN-Tech, an e-commerce solutions company in Lanham, Maryland. "Bush is pro-business, and when he came into office, he said those who want to compete will compete. I think he will recognize there's a vested interest in having minority businesses providing services."

Payne urges minority business owners to petition the White House and members of Congress to support the program. "And do it fast," he advises.

"If you have a majority which, deep in their hearts, think affirmative action ought to be ended, this might give them the opportunity to do it," says Washington attorney Edward Correia, who worked at the White House reviewing affirmative action programs from 1998 to 2000. "This is really the first test for the Bush administration on affirmative action. These programs have been mended as much as they can be and should meet any reasonable constitutional standard."

AFFIRMATIVE ACTION LIFELINE

6.28.1978 Regents of the Univ. of California v. Bakke

Supreme Court ruled that while race was a legitimate factor in school admissions, the use of such inflexible quotas as the medical school set aside was not.

5.19.1986 Wygant v. Jackson Board of Education 

The Supreme Court ruled against the school hoard, maintaining that the injury suffered by non-minorities affected could not justify the benefits to minorities.

1.23.1989 City of Richmond v. J.A. Croson Co.

The Court ruled disallowing the city's set-aside plan requiring that 30% of subcontracts go to minority-owned firms.

6.12.1995 Adarand Constructors Inc. v. Pena

The court again called for "strict scrutiny" in determining whether discrimination existed before implementing a federal affirmative action program.

12.13.2000 Gratz v. Bolinger

A federal judge ruled that the use of race as a factor in admissions at the University of Michigan was constitutional.