What’s It Going to Be?
An early moment of truth for President Bush and John Ashcroft.

Mr. Clegg is general counsel of the Center for Equal Opportunity.
March 27, 2001 9:20 a.m.

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?