High Court Takes Up Case Testing Bounds Of Racial Preference

By , Staff writer of The Christian Science Monitor

THE proverbial angry white male is getting his day in court.

In a landmark case that challenges affirmative action, lawyers will present arguments today before the United States Supreme Court on the use of race in awarding federal contracts.

The case has special significance in light of last November's elections. Republicans seized control of Congress on a wave of white-male frustration, due in part to a perception that minorities and women have been receiving preferential treatment at the expense of white men.

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For some conservatives, long eager to roll back programs designed to aid groups seen as disadvantaged, their time has come. And if the Supreme Court rules to restrict racial preferences in today's case, the anti-affirmative-action movement would gain momentum.

``Our goal is to curb racial preferences in federal government employment, contracts, and programs,'' says Clint Bolick, a former Reagan administration lawyer leading a project to write legislation that would revamp affirmative action. His proposal is similar to the California Civil Rights Initiative, which would prohibit state agencies from giving preference to any person or group based on race or sex.

White-male company

The Supreme Court case in question, Adarand Constructors, Inc. v. Transportation Secretary Federico Pena, pits a white-male-owned company against the federal government. The Colorado Springs-based Adarand submitted the lowest bid for a highway-guardrail project, then was denied the federal subcontract for racial reasons.

What the court must decide is whether the consideration of race in granting federal contracts is valid under the equal-protection clause of the Constitution's 14th Amendment. As of now, Congress is allowed wider latitude in setting up racial-preference programs than are states or localities. Adarand asks that the federal government be held to the same strict standards.

The case has landmark potential for two reasons, says Douglas Kmiec, a constitutional-law professor at Notre Dame University in South Bend, Ind.

First, he says, ``the area [of race] is so unsettled.'' In key racial-preference cases from 1980 and 1990, the Supreme Court upheld racial preferences but issued splintered decisions. With Adarand, he says, the court ``can articulate a clear standard of review.''

Second, says Professor Kmiec, Adarand will be argued before a court whose composition has changed dramatically since 1990. All four of the justices who opposed a more lenient standard of judicial review in the 1990 case remain on the court. The new members - David Souter, Clarence Thomas, Ruth Bader Ginsburg, and Stephen Breyer - are either ``divergent or unknown on the issues,'' says Kmiec.

The court's decision to review Adarand in the first place raised eyebrows, since the federal government had beaten the Adarand lawsuit easily in lower courts. Some court-watchers speculate that the Supreme Court took on the case so it could make its mark on the issue of racial preferences in federal programs, a move that may signal a readiness to rethink current practices.

Minority and women's groups, fresh off a long weekend marking the anniversary of the birth of civil-rights leader Martin Luther King Jr., smell trouble. They planned a demonstration yesterday on the steps of the Supreme Court.

Weight of precedence

Past court rulings on similar cases, though, will weigh heavily in the court's consideration of Adarand, says William McNeill, a lawyer at the Legal Aid Society of San Francisco and author of a friend-of-the-court brief on Adarand.

Furthermore, he says, ``these programs have been successful at a number of levels. Without them, minority businesses would not get a fair shake.''

Adarand's contention is that racial and ethnic minorities should not be given a ``presumption of disadvantage.'' Indeed, activists who seek to rewrite affirmative-action laws say preference programs are still valid, but that the criteria for qualification should not be so racially oriented. The daughter of a rich black dentist should not be granted preference for a federal program over the child of a poor white Appalachian miner, the typical argument goes.

The Transportation Department's argument in Adarand is that the race-conscious preference - which granted the highway subcontract to the Gonzales Construction Company - is remedial because it is based on evidence of discrimination in federal procurement and construction contracting.

The preference clause in effect in this case does not ``impermissibly burden'' nonminority business, says Kmiec, because it only encourages and does not require the prime contractor to hire ``disadvantaged business enterprises'' as subcontractors. Furthermore, nonminority persons may qualify as a disadvantaged enterprise.

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