Court dimisses affirmative action case

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent  |  Nov. 27, 2001 at 12:50 PM
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WASHINGTON, Nov. 27 (UPI) -- The Supreme Court Tuesday dismissed a challenge to a Clinton-era affirmative action program, which the Bush administration had already defended in argument.

The justices said they dismissed the case at this late date because they agreed to hear the case in the first place on one set of facts, but instead found out the challenger was attacking a different set of facts.

In other words, the justices said the case had shifted under their feet.

The challenger, a white-owned Colorado company, questioned the constitutionality of awarding U.S. highway subcontracts based in part on race.

The case began in 1989, when Adarand Constructors Inc. submitted the low bid on a highway guardrail project in Colorado, but the contract was awarded to an Hispanic-owned company because of an affirmative-action program.

Adrarand went to court, and the Supreme Court ruled in the case in 1994 that the highest standard of "judicial scrutiny" had to be applied to race-based government programs. In other words, government affirmative action could only survive if it fulfilled some compelling government interest and tackled ongoing discrimination.

The case was sent back to a trial court, where a judge ruled for Adarand under the principles outlined by the Supreme Court. A federal appeals court dismissed the case in 1999, ruling that because of Department of Transportation changes in the program, the dispute was moot.

But the Supreme Court again swooped in and took control. Without hearing argument a second time, the high court sent the case back down for a rehearing on the merits.

When the appeals court ruled for the government once more, the Supreme Court decided to hear the case again.

However, the Bush administration filed a brief this summer saying the Adarand challengers were attacking a program that no longer applies to Colorado.

Speaking for Adarand before the Supreme Court on Oct. 31, Denver attorney William Pendley said that just isn't so.

Noting that the case began 12 years ago when the company lost a contract despite submitting the lowest bid, Pendley said, "In 2001, Adarand comes before this court because it still can't compete on an equal footing."

However, U.S. Solicitor General Theodore Olson argued that the challenge was attacking the wrong part of the affirmative action program.

Tuesday, the Supreme Court unanimously agreed with him, dismissing the case as "improvidently granted."

In a "per curiam" bench opinion read by Chief Justice William Rehnquist, the Supreme Court said the appeals court's strict scrutiny analysis "relies almost exclusively on regulations designed to channel benefits, through states and localities, to firms owned by individuals who hold themselves out to be socially and economically disadvantaged ... These regulations clearly permit the award of contracts based on race-conscious measures in jurisdictions where (Adarand) operates ... "

It appeared that Adarand was challenging that analysis, the opinion said.

Adarand "now asserts, however, that it is not challenging any part of (the Department of Transportation's) state and local procurement program. Instead, it claims to be challenging only the statutes and regulations that pertain to direct procurement of DOT funds for highway construction on federal lands."

That was not the subject of the case decided by the appeals court, the Supreme Court said, and dismissed its review of the case.

(No. 00-730, Adarand vs. Mineta et al)

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