Court hears case that could settle affirmative action's future

January 18, 1995|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The future of federal affirmative action programs seemed to teeter on a constitutional brink yesterday as the Supreme Court, hearing a significant new test case, displayed fresh signs of a split.

Justice Sandra Day O'Connor, who may hold the decisive swing vote, skeptically quizzed the Clinton administration's top Supreme Court advocate as he tried to defend a federal highway contracts program that gives minority-owned subcontractors an advantage.

U.S. Solicitor General Drew S. Days III also ran into insistent questioning by Justice Anthony M. Kennedy, who has strongly criticized federal race-preference programs in the past but who nonetheless has not been considered a sure vote against them.

Mr. Days sought to persuade the court that the program, in effect since 1979, is a narrow one aimed more at helping "disadvantaged" subcontractors even if they are not owned by minorities or women. Those groups, however, get an advantage under the program.

Both Justices O'Connor and Kennedy ridiculed Mr. Days' argument that white-owned subcontracting firms had realistic opportunities to challenge the racial or gender preferences to make sure they do not become automatic guarantees of work.

A federal appeals court in Denver, upholding the program last February, ruled that Congress may go further than state and local governments in adopting race-conscious public programs.

That ruling is being challenged by a small highway guard-rail contractor in Colorado Springs, Adarand Constructors Inc. It submitted a low bid on a guard-rail project, but lost out on a subcontract to a firm with Hispanic owners. The main contractor on the job got a $30,000 bonus for using a Hispanic firm to install the guard rails.

The Colorado case came up in the court amid new political attacks on affirmative action, including plans by some Republicans in Congress to seek to repeal all federal programs that provide special advantages for minorities and women.

Anti-affirmative action sentiment has also spread to the states, most notably California, where a new citizen-initiative drive to wipe out all such plans was begun recently.

Although much of the questioning at yesterday's Supreme Court hearing focused on the specifics of the government's minority subcontractor program for highway projects, the Colorado Springs firm's appeal arises against a background of a much broader dispute among the justices over the constitutionality of federal affirmative action plans as a whole.

Civil rights groups have seen the Colorado case as a major threat to such plans, and nearly 1,000 demonstrators appeared outside the court on Monday -- when it was not in session -- to protest the court's willingness to reopen the constitutional question.

When the court last ruled in 1990 on affirmative action, it upheld a federal law that allows some advantage for minority-owned broadcasters in obtaining federal licenses. But that decision split the court 5-4, and only one member of the majority -- Justice John Paul Stevens -- remains on the bench. All four dissenters are still there.

The dissenters, in an opinion written by Justice O'Connor, said Congress should have no more authority than state and local governments to adopt affirmative action laws. In a ruling in 1989, also written by Justice O'Connor, the court declared that state and local governments may use race-conscious public programs only as a last resort, and only to cure specific past racial bias by government.

The O'Connor dissent four years ago was supported by Justice Kennedy and by Chief Justice William H. Rehnquist and Justice Antonin Scalia.

Yesterday, the chief justice and Justice Scalia were the most critical of the highway program and of the solicitor general's defense of it.

At one point, Mr. Days said Congress passed the law under its clear constitutional power to protect legal equality. The chief justice countered that Mr. Days actually was defending the use of that power to promote inequality in programs like the one used in Colorado.

Justice Clarence Thomas, a frequent critic of affirmative action when he was a government official and the author of a major ruling by a federal appeals court against one such program, said nothing during the one-hour hearing.

Among the other justices, the newest, Stephen G. Breyer, expressed concern to a Denver lawyer for the white-owned firm that the court might have to strike down a series of prior rulings favoring affirmative action if it were going to nullify the highway minority subcontractor plan.

Justices Ruth Bader Ginsburg and David H. Souter seemed sympathetic, in their questioning, to the disputed minority program. Justice Stevens asked few questions, and revealed little about his reaction to the new case.

A final decision is expected by early summer.

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