White House Defends Racial Preferences
By GINA HOLLAND, Associated Press Writer
Saturday August 11 12:56 AM ET
WASHINGTON (AP) - The Bush administration defended the use of racial preferences in a highway program, but made clear it was not endorsing quotas that the president has pledged to fight. The administration asked the Supreme Court late Friday to uphold practices being contested by a white Colorado contractor in a long-running case. President Bush's Justice Department could have abandoned the position of the Clinton administration, but that would have broken a precedent against abrupt policy changes by new presidents in ongoing Supreme Court cases.
Solicitor General Theodore Olson, who represents the administration before the court, wrote that the policy was not just about race. ``The determining factor is not the individual's race; it is having suffered discrimination on account of race, ethnicity or cultural bias ...,'' he said. Further, he said, the program under dispute ``is designed to ensure that aid recipients only employ race-conscious remedies as a last resort.'' Conservative group leaders hoped Bush would use the case to take a stand against affirmative action.
``Being in a politically difficult position does not forgive you doing the right thing - constitutionally and morally,'' said Curt Levey, an attorney for the Center for Individual Rights. Bush campaigned against racial quotas as a candidate and Attorney General John Ashcroft also has opposed affirmative action. The filing should not be interpreted as the administration embracing affirmative action, only that the program in question was not improper, Justice Department spokeswoman Mindy Tucker said. ``This is John Ashcroft doing what he said he would do during his confirmation hearings,'' she said.
``When there is a good-faith argument to be made in defense of a statute, he will make it.'' Before President Clinton left office in January, his top lawyer filed papers defending the Transportation Department's preferential contracting program as a constitutional way to combat the lingering effects of racial discrimination.
The Bush administration did not go that far. Olson noted that the department prohibits quotas and ``will not authorize the use of set-asides except in the most egregious instances of otherwise irremediable discrimination.'' The suit was filed over bonuses that large government contractors have gotten for hiring ``disadvantaged,'' orminority-owned, smaller firms as subcontractors. Colorado Springs-based Adarand Constructors Inc. had submitted a lower bid for guardrail work in the San Juan National Forest in southern Colorado, but it lost out to a Hispanic-owned company because of the program. Adarand sued in 1990.
When the dispute went to the Supreme Court the first time, in 1995, justices used it to set strict limits on federal affirmative action programs. The court decided on a 5-4 vote that assistance must be narrowly tailored to meet a compelling government interest. The Supreme Court is now reviewing Adarand's claim that a revised version of the program still gives minority competitors an unfair advantage. Adarand's lawyer, William Perry Pendley of the conservative Mountain States Legal Foundation, said the filing means that ``for the three presidents and six secretaries of transportation with whom we've fought this case, there has been no change.'' Despite that, he said, ``I take President Bush at his word'' that he wants to end affirmative action.
The case is Adarand Constructors v. Mineta, 00-730
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