High court to rule on federal policies favoring minorities

Race-based preferences in construction program hinge on justices' action

March 27, 2001|By Thomas Healy | Thomas Healy,SUN NATIONAL STAFF

WASHINGTON - The Supreme Court re-entered the debate over affirmative action yesterday, agreeing to consider whether a federal program designed to help minority-owned businesses violates the Constitution.

The court's action puts the spotlight once again on a federal highway program that gives incentives to contractors who parcel out work to businesses run by racial minorities and women. And depending on how the justices rule, it could have widespread implications for other race-based preferences at the state and federal level.

The case centers on a highway construction project in Colorado in the late 1980s. A white subcontractor, Adarand Constructors, submitted the lowest bid to install guardrails on the highway but lost the job to a minority-owned business because of the incentive program. Adarand filed a lawsuit claiming that the program was unconstitutional.

When the suit was first heard by the lower courts, they upheld the program, ruling that the government has substantial leeway to single out minorities for preferential treatment. But the Supreme Court reversed those decisions in 1995, declaring that all racial preferences adopted by the federal government must pass a strict legal test.

The case went back to trial, where a judge ruled in favor of Adarand. But a federal appeals court reversed that decision. It ruled that the highway program was constitutional even under the strictest test because it was narrowly tailored to serve the government's compelling interest in redressing the effects of discrimination.

It is that decision that Adarand is now appealing. It claims that the program is unconstitutional because the government did not consider race-neutral alternatives before turning to affirmative action. Adarand also argues that the government must prove that each business benefiting from the program was the victim of discrimination in the past.

The Clinton administration filed a brief opposing Adarand's lawsuit, arguing that the program ensures that "benefits flow only to those who are truly disadvantaged." It is unclear whether the Bush administration will defend the case, which will be heard next fall.

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