Justices
to Revisit Affirmative Action in a Test Case for Bush Justices
to Revisit Affirmative Action in a Test Case for Bush
March 27, 2001
By LINDA GREENHOUSE WASHINGTON,
March 26--The Supreme Court set the stage today for a renewed debate over affirmative action, accepting a constitutional challenge to a federal contracting law that presumes that companies owned by blacks and members of other minorities are eligible for special treatment as "socially and economically disadvantaged" enterprises.
The case, to be argued in the fall but with briefs due by late spring, will provide the first test of the Bush administration's willingness to defend current federal policies on highly charged subjects like race. As a senator from Missouri in 1998, Attorney General John Ashcroft voted against reauthorizing the disadvantaged business enterprise program at the Department of Transportation, the policy under attack in the case the court accepted today. Asked this month on the NBC program "Meet the Press" whether he would defend the policy before the court, Mr. Ashcroft told the host, Tim Russert: "I defend the law of America.
Obviously, I will defend the Department of Transportation's regulations." The plaintiff in the new case, Adarand Constructors, is the same white-owned contracting company in Colorado Springs whose challenge to an earlier version of the policy led in 1995 to a Supreme Court decision that federal programs containing racial preferences were constitutionally suspect. The court did not strike down the program in the original Adarand case, instead sending it back to the lower courts to see whether it could survive the newly articulated standard of "strict scrutiny."
In September, the United States Court of Appeals for the 10th Circuit, in Denver, said the program met the test and was constitutional. The contracting program has evolved in the intervening six years and, according to a brief the Clinton administration filed with the Supreme Court on Bill Clinton's last full day in office, "differs substantially" from the one the court found constitutionally dubious in 1995.
Whether those changed--which prohibit the use of quotas or set- asides and make the presumption of economic disadvantage easier for competitors to challenge--create a constitutional difference is a central question in the new case. Another question is how far-reaching an examination of affirmative action the court intends to make with this case as its vehicle.
On one level, the new appeal, Adarand Constructors Inc. v. Mineta, No. 00-730, is little more than a factual dispute about whether the disadvantaged business enterprise program was sufficiently "narrowly tailored" to the compelling governmental interest in easing barriers faced by minority-owned companies in public contracting. On this basis, the Clinton administration labored to persuade the justices to pass on the case.
"The allegation that a court of appeals has misapplied settled law to the particular facts of a case is not the sort of matter that ordinarily warrants this court's review," Seth P. Waxman, then the solicitor general, told the court in a brief filed on Jan. 19. The fact that the court still granted the case suggests that at least some justices Ñ the votes of four are needed to accept a case--are after bigger game.
There is a suggestion in the appeal filed for Adarand by the Mountain States Legal Foundation that no federal affirmative action program is constitutional unless it is intended to redress discrimination practiced by the government itself. Some Supreme Court decisions have suggested such a rule, but the court has never actually gone so far.
In opposing review on that broader ground, the Clinton administration's brief
quoted from a separate opinion by Justice Sandra Day O'Connor in a 1989 affirmative
action case, City of Richmond v. Croson, in which Justice O'Connor said: "It
is beyond dispute that any public entity, state or federal, has a compelling
interest in assuring that public dollars, drawn from the tax contributions of
all citizens, do not serve to finance the evil of private prejudice."
Justice O'Connor's vote will be critical to the outcome in the new case because she is the court's swing justice on affirmative action, as she demonstrated in the earlier Adarand case. In that case, decided by a 5-to-4 vote, she wrote for the court that the minority contracting program was constitutionally dubious but added that "we wish to dispel the notion that strict scrutiny is strict in theory but fatal in fact."
Given the persistence of racial discrimination, she said, "government is not disqualified from acting in response to it." Whatever the court had in mind in accepting the new case, the decision to do so did not come easily. The justices considered the case in their weekly closed-door conference four times since late January, an unusually long period of review at this stage.
The Adarand dispute dates to 1989, when despite being the lowest bidder on a contract to install guardrails on a stretch of Colorado highway, Adarand lost the job to a minority-owned subcontractor. Under the disadvantaged business enterprise program as it then was, the general contractor received a $10,000 bonus from the federal Department of Transportation for using a subcontractor that qualified under the program.
Adarand now argues that changes to the program since then have not cured the basic constitutional defect of incorporating a racial classification into federal law and regulations. The Mountain States Legal Foundation, a conservative law and policy group based in Denver, which is representing Adarand, has close ties to the Bush administration. Gale A. Norton, secretary of the interior, worked there as a lawyer. In a second case today, the court followed up on its ruling last week on arbitration in the workplace by accepting an appeal by the Equal Employment Opportunity Commission.
That federal agency is authorized to sue employers on behalf of workers who claim they have been discriminated against. The question in the case, E.E.O.C. v. Waffle House Inc., No. 99-1823, concerns what power the agency retains to seek remedies on behalf of workers who are covered by binding arbitration agreements.
Last week, in Circuit City v. Adams, the court ruled that employers may enforce agreements to take all workplace-related disputes to arbitration, requiring workers to waive their right to go to court. The E.E.O.C. argues in the new case that it should still be able to sue for relief like back pay, reinstatement and damages on behalf of workers who are covered by arbitration agreements and who cannot bring the suits themselves.
The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled in 1999 that the agency could sue for injunctions to stop illegal workplace practices but could not seek "victim-specific relief" like back pay and damages. In light of the decision last week, which is expected to encourage more employers to insist on arbitration agreements, the question of the federal agency's role has taken on added importance.
Copyright 2001 The New York Times Company
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