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 n Monday the Supreme
Court announced that it would grant review in a crucial case involving
government
preferences
based on race and ethnicity, Adarand Constructors, Inc. v.
Mineta. The legal issues at stake are extremely important,
and it will force the Bush administration to confront the issue
of such preferences — a.k.a. "affirmative action" — sooner
rather than later.
The case arises out of a federal highway program (that's why the
defendant is the administration's Secretary of Transportation, Norman
Y. Mineta). The plaintiff, Adarand Constructors, Inc., is a small
Colorado-based highway construction company specializing in guardrail
work. In 1989, 12 years ago, it submitted the low bid on a guardrail
subcontract, but the prime contractor instead accepted a higher
bid from another company.
The reason? The federal government pays a cash bonus to prime contractors
that accept bids from companies owned by certain racial and ethnic
groups; Adarand's rival was in the preferred category, and Adarand
itself was not. Thus began the latter's dozen-year quest for fair
treatment.
The case has, in fact, been to the Supreme Court twice before. In
1995, the Court ruled 5-4 that racial and ethnic discrimination
by the federal government should be judged by the same, "strict
scrutiny" standard as discrimination by state or local governments.
The U.S. Court of Appeals for the Tenth Circuit had not held the
feds to this standard, and accordingly the case was sent back.
Five years later, in early 2000, the Supreme Court again had to
send the case back down. This time it ruled unanimously that Adarand
still had a live claim, despite a decision to the contrary by the
court of appeals. Later last year, the Tenth Circuit yet again ruled
against Adarand, this time holding that the federal program passed
"strict scrutiny." Mountain States Legal Foundation, the conservative
public-interest group handling the case, petitioned to the Supreme
Court, and the petition was granted on Monday.
The Tenth Circuit's decision upholding the federal government's
program is very unpersuasive, as was the Clinton administration's
defense of the program. For discrimination to be justified, the
Supreme Court had ruled there must be a "compelling" purpose for
it, and the program must be "narrowly tailored" to achieving that
purpose. The government's asserted justification here is remedying
discrimination against subcontractors of particular skin color and
ancestry. But it is simply not plausible that the only way to fight
such discrimination is through discrimination of a government-sanctioned
variety.
On the same day that it granted review in Adarande Supreme
Court let stand a decision by the U.S. Court of Appeals for the
Eleventh Circuit in Fulton County v. Webster. In that
case, the county had been barred by the courts from using preferences
in its contracting. It takes the vote of four justices to grant
review in a case, so it is interesting and encouraging that Adarand
was taken and Webster was not. Still pending with the Supreme
Court is a petition to hear another case involving racial and ethnic
preferences — this one in the context of the University of
Washington law school's admissions policy.
Now the Bush administration in on the spot. Doubtless it would have
preferred to have gone for a year or two or eight without dealing
with the "affirmative action" issue, but this case — and others
like it — will force the administration's hand.
Attorney General John Ashcroft declined to withdraw a Clinton administration
friend-of-the-court brief in a case involving racial and ethnic
admission preferences (in primary education) when it was argued
before the full U.S. Court of Appeals for the Fourth Circuit in
Richmond, Virginia, a
month ago. That was a mistake. But in the Adarand case
the federal government is an actual party — and so it will
have to decide whether to defend to the Supreme Court a program
in which the government discriminates against its citizens on the
basis of the color of their skin and what country their ancestors
came from.
Such discrimination is neither compassionate nor conservative. So,
Mr. President and Mr. Attorney General, what's it going to be?
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