Court abandons plans to rule on affirmative action case

Tuesday, November 27, 2001

Associated Press WriterWASHINGTON (AP) -- The Supreme Court abandoned plans Tuesday to rule on a major affirmative action case, concluding the lawsuit involving a white-owned contractor wasn't a good vehicle for deciding whether federal rules amount to reverse discrimination.

The court's action, taken in a unanimous, unsigned ruling, is an anticlimactic end to what had been billed as a blockbuster affirmative action case. Opponents of racial preferences had hoped the court would use the 11-year fight over government highway contracts to effectively declare federal affirmative action programs unconstitutional.

The case, Adarand Constructors Inc. v. Mineta, had developed procedural problems that several justices suggested last month were too messy to fix.

The case began as a new test of whether the government can offer incentives to minorities or others traditionally at a disadvantage in the business world without unconstitutionally harming white-owned businesses.

Opponents of affirmative action, including many conservatives close to the Bush administration, hoped the court would use the case to effectively eliminate affirmative action programs in the federal government. The court flirted with that dramatic step in a 1995 case involving the same small, white-owned Colorado construction firm at the heart of the case dismissed Tuesday.

Supporters of the practice feared that at the least, another ruling in the Adarand dispute would make affirmative action even more constitutionally suspect than it is now.

The court agreed to hear the latest Adarand case in March. But at oral arguments Oct. 31, it was apparent that the two sides could no longer agree what they are fighting about, or whether there was even a case at all.

Much of the hourlong session focused on whether the Adarand construction company even has proper legal footing to claim discrimination. The justices appeared frustrated, and several asked lawyers for both sides what the court should do with the muddle.

Justice Stephen Breyer suggested one option was just what the court did Tuesday.

The court's action essentially erases the Adarand appeal and leaves a federal appeals court ruling against the company in place.

The court's short ruling laid out the procedural problems with the case, and concluded that the justices could not step in to set things right. That said, the court concluded it could not address the merits of Adarand's affirmative action complaint.

The federal government changed the program originally at issue in the Adarand fight, and said it no longer applied in Colorado, where Adarand does business. The company could not show that it was harmed by the modified program, the government argued.

During the argument, Adarand's lawyer replied that the government keeps pulling new affirmative action programs out of its "bag of tricks."

Adarand could never compete equally with minority- or female-owned firms so long as the government offered any incentive to big contractors to hire such "disadvantaged" businesses over one run by a white man, lawyer William Perry Pendley said.

The Supreme Court's 1995 decision involving Adarand drastically narrowed affirmative action by saying such aid must be narrowly tailored to meet a compelling government goal. At the time, it was assumed that very few affirmative action programs could meet that test.

That 5-4 ruling arose from a 1989 highway contract, in which Adarand submitted the low bid but still lost out to a Hispanic-owned firm. Adarand sued in 1990, and has been in court ever since.

Adarand's latest appeal claimed that the government replaced the original contracting program with another that still gave its competitors unfair advantage.

The 10th U.S. Circuit Court of Appeals ruled last year that the revised program met the Supreme Court's constitutional test. Congress provided strong evidence that minority businesses suffered intentional discrimination in highway construction bidding, the appeals court said.

The case is Adarand Constructors Inc. v. Mineta, 00-730.

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