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Last week, President George W. Bush fired off the latest shot in an eleven-year-long court battle that could determine the scope of federal affirmative-action programs for years to come. But, surprisingly, he supported current programs and urged them to continue, going against previous statements to the contrary.

The case involves a Colorado Springs guardrail contractor, Adarand Constructors, that sued the U.S. Department of Transportation in 1990 after it lost a job to a higher-bidding, minority-owned firm. Adarand claimed that the agency's Disadvantaged Business Enterprise program was unconstitutional. The case made its way through the federal court system before winding up in the U.S. Supreme Court ("Derailing Affirmative Action," July 26). Bush administration lawyers, who filed a brief with the high court last Friday, argued that the DOT program was not unconstitutional and claimed that the agency doesn't use race-based factors in awarding federal contracts. They also said the DOT no longer uses the particular affirmative-action program that started the suit in the first place. "It is not clear that there remains any cognizable controversy before the Court," the brief states.

William Perry Pendley, president and chief legal officer of Mountain States Legal Foundation, which has represented Adarand pro bono throughout the litigation, disagrees. "There's absolutely no change in the program," he says. "This is the same program Congress adopted in 1982. Nothing has changed." The Clinton administration tinkered with the regulations, but the changes were minor, he adds.

Pendley and Adarand owner Randy Pech aren't surprised by the Bush brief. It is common practice for incoming administrations to allow ongoing litigation to run its course without changing sides. The Clinton administration had also declared that the federal programs were constitutional. "I think the Bush administration decided it would be bad form to break from Clinton's earlier position," Pendley says.

If Bush hadn't come down in favor of continuing the federal programs, Pech says, the case would probably be over. "Had the government come in and said, 'We don't agree with affirmative action, and we for sure agree with Adarand in this particular case,' and filed their briefs, then why would the court bother to hear the case?"

But Pech wants the case heard. His suit goes back to 1989, when Adarand was the low bidder on a guardrail project in southwestern Colorado but lost the contract to a minority company. Although the U.S. District Court and U.S. Court of Appeals ruled against Pech, the case was taken up by the U.S. Supreme Court in 1995. The high court reversed the decisions of the lower courts by saying that federal affirmative-action programs were constitutional only if they met "strict scrutiny" -- a rigorous standard heretofore required only of state programs.

The case was sent back to the district court, where it was stalled for a few years after Adarand itself was briefly certified as a disadvantaged business; the lower courts argued about whether this meant Adarand's lawsuit was moot. (The Supreme Court ruled in January 2000 that Adarand still had standing to continue its case.) The Court of Appeals then claimed that changes made to federal affirmative-action programs under the Clinton administration since the Supreme Court's 1995 decision did, in fact, meet strict scrutiny.

That decision was also appealed to the Supreme Court, which is expected to settle the matter once and for all this fall. Pech says Bush's support of the federal program is motivated by political precedent rather than conviction. "I don't think that necessarily reflects where his heart is. It's just what he has to do."


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